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Full text of "International law documents : 1944-45"



U. S. NAVAL WAR COLLEGE 





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NAVAL WAR COLLEGE 
k HWPOIT, R.I. 



NAVAL WAR COLLEGE 
NEWPORT, R. I. 



INTERNATIONAL LAW 
DOCUMENTS 

1944-45 



$ 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON: 1946 



For sale by the Superintendent of Documents, U. S. Government Printing Office 
Washington 25, D. C. — Price $1.00 



PREFACE 

The publication of the Naval War College on in- 
ternational law for the years 1944-45 has been pre- 
pared, as formerly since 1938, in collaboration with 
Payson Sibley Wild, Jr., Ph. D., professor of inter- 
national law, Harvard University, and associate for 
international law, Naval War College. 

Discussions by the Naval War College classes have 
given special attention to international law in its re- 
lation to the conduct of the war just ended. Impor- 
tant and relevant documents concerning belligerents 
and neutrals also have been under consideration. 
Documents cited in this volume are among those 
discussed. 

While certain of these documents are easily acces- 
sible, others have not yet appeared in any collection 
and are not readily available to naval officers. 

W. S. Pye, 
Vice Admiral, United States Navy (Ret.) 

President, Naval War College. 

November 19, 1945. 



CONTENTS 

Page 

I. Contraband of War 1 

1. Early Attitude Toward Contraband 1 

2. Mingling of Early and Modern Attitudes 2 

3. Eighteenth and Early Nineteenth Centuries 3 

4. Late Nineteenth Century 6 

5. Twentieth Century Before World War 1 11 

6. World War I 22 

7. Neutral Goods on Enemy Ships 73 

8. Non-Contraband 74 

9. Harvard Draft Convention 78 

10. World War II 87 

11. Conclusions 99 

II. The Crimea Conference 100 

III. Act of Chapultepec 110 

IV. Further Resolutions of Inter-American Conference 116 

V. Soviet Denunciation of Pact with Japan 121 

VI. Proclamation of German Surrender 124 

VII. Sinking of the "Awa Maru" 125 

VIII. Charter of the United Nations 138 

Statute of the Court of International Justice 176 

IX. Instruments of German Surrender 200 

X. Proclamation Defining Terms for Japanese Surrender 204 

XI. The Potsdam Declaration 207 

XII. Special Orders by Supreme Commander to German 

Naval Forces 228 

XIII. Soviet War Declaration on Japan 243 

XIV. Statement on Austria 246 

XV. Offer of Surrender from Japanese Government 247 

XVI. Agreement for the Establishment of an International 

Military Tribunal 249 

XVII. Japanese Acceptance of Potsdam Declaration 262 



V 



I. CONTRABAND OF WAR 

1. Early Attitude toward Contraband 

"The word contraband, Latin contrabandum, implied disregard 
of a decree or prohibition. The word was used in early times in re- 
ferring to domestic restrictions usually upon trade in named articles 
as in regard to trade in salt which often was a government monop- 
oly. Later prohibitions were issued restricting within specified areas 
trade in materials which might be of use in war. 

"The prohibition on export of arms, . . . was common in Roman 
and Byzantine periods "when it was extended to supplies which 
might be serviceable to possible enemies. At times religious penalties 
were prescribed by the early church for those who furnished war 
materials to infidels. In these instances the measures taken were 
domestic or applied to those under the authority of the source of 
the prohibitions and the prohibitions might be applied both in time 
of peace and in time of war. Kings of England in the fourteenth 
century issued prohibitions, sometimes in regard to furnishing arti- 
cles to nationals of named states and sometimes in regard to 
furnishing specified articles to any foreigner. England also made 
treaties in this century prohibiting the supplying of specified 
articles under penalty of forfeiture to the king (Edward III, 1370). 

"Gradually the prohibitions aimed at regulating domestic trade 
began to extend to the activities of foreign merchants in time of 
war. This extension created the demand that for the security of 
traders the list of prohibited areas should be made known either by 
previous treaty agreement or by special proclamation, and such 
action became usual from the seventeenth century. The early enum- 
erations were not based on any uniform principle but were often de- 
termined by political or other motives. 

"It was easy to extend the domestic prohibition of furnishing 
certain goods to certain areas or to infidels by analogy to the furnish- 
ing of such goods to enemies. 

"As belligerents would have no authority over acts of traders 
within neutral jurisdiction, they began to seize goods of the nature 
of contraband when these were outside of the immediate control 
of the neutral state, as in transit on the high sea. Here there would 
be a degree of conflict between the rights of the neutral to protect 
the shipping under its national flag and the right of the belligerent 

1 



to prevent the delivery to his opponent of goods which might be used 
for his defeat or injury. The right of the belligerent was to a 
degree gradually conceded as dominant over the right of the neutral 
trader, and the belligerent assumed the right to enumerate by proc- 
lamation, or otherwise to determine, what should be regarded as 
under the ban. 

"The furnishing of contraband was, at first, regarded as an act 
for which the state should be held responsible. Gradually the prob- 
lem of supplying of contraband by subjects of neutral states gave 
rise to controversies. Attempts were made to extend to states re- 
sponsibility for acts of their subjects. The discussions of these topics 
were often by theologians because prohibitions had been against 
furnishing contraband to infidels and the course of argumentation 
differed from modern discussions though involving like principles. 
This was especially true of the fourteenth and fifteenth centuries." 
(United States Naval War College, International Law Situations, 
1933, 2-3.) 

2. Mingling of Early and Modern Attitudes. 

The mingling of the modern and earlier attitude is 
demonstrated in the writing of Gentilis (1552-1608) 
who emphasized the negative aspect of the Golden 
Rule— 

"that one should not do unto others what he would not that they 
should do to him". 

"Let no one have the power to transport wine, oil, or any liquid 
to heathendom even to give them a taste, to say nothing of satisfying 
the demands of trade." "Let no one dare to sell to alien heathen . . . 
coats of mail, shields, bows, arrows, broadswords, swords, or arms 
of any other sort whatsoever. Let absolutely no weapons be retailed 
to them by anyone, and no iron at all, whether already made up or 
not, for it would be harmful to the Roman Empire, and would 
approach treason to furnish the heathen, who ought to be without 
equipment, with weapons to make them stronger. But if anyone 
shall have sold any kind of arms anywhere to alien heathen of any 
nation whatsoever in violation of the interdicts of our holy religion, 
we decree that all his goods be straightway confiscated, and then he 
too suffer capital punishment." Gentilis, Hispanicae Advocationis, 
bk. I, chap. XX) ; (United States Naval War College, Interna- 
tional haw Situations, 1933, 4.) 

"The neutral began to demand that the evidence that the trade 



would be dangerous to the belligerent must also be clear not only 
from the nature of the goods themselves which might, if going to 
another neutral, be innocent, but that the goods if liable to capture 
must have an enemy destination. The nature of the goods and the 
destination thus became early determining factors in liability for 
contraband." (United States Naval War College, International 
haw Situations, 1933, 4.) 

Grotius (1583-1645) : 

"But there often arises the question. What is permissible against 
those who are not enemies, or do not want to be called enemies, but 
who furnish our enemies with supplies? For we know that this 
subject has been keenly debated in both ancient and modern times, 
since some champion the relentlessness of warfare and others the 
freedom of commercial relations. 

"First, we must make distinctions with reference to the things 
supplied. There are some things, such as weapons, which are useful 
only in war; other things which are of no use in war, as those 
which minister to pleasure; and others still which are of use both 
in time of war and at other times, as money, provisions, ships, and 
naval equipment." (Carnegie Endowment for International Peace, 
Grotius, De Jure Belli ac Paci, Vol. II, bk. Ill, chap. I, V, 601) ; 
(United States Naval War College, International Law Situations, 
1933, 4-5.) 

3. Eighteenth and Early Nineteenth Centuries 

By the time of the American Revolution no com- 
mon treatment or definition of contraband had been 
adopted by the nations of the world, but bilateral 
treaties negotiated by the United States in the late 
eighteenth and early nineteenth centuries indicated 
the trend toward adoption of the doctrine of "free 
ships, free goods, except contraband of war." These 
treaties further emphasized "character of the goods" 
as a criterion of contraband by the inclusion of lists 
of articles, although attempts to establish definitive 
lists of absolute and conditional contraband were not 
generally favored until late in the nineteenth century. 

Although the nature of contraband remained ob- 



scure during this period because of the conflicting 
conceptions held by neutrals and belligerents, two 
simple criteria of contraband emerged stronger than 
before: (1) enemy destination and (2) belligerent 
purpose of the goods as described in appropriate 
treaty lists. To be classed as contraband, goods had to 
fullflll both specifications. Ownership, neutral or en- 
emy, of goods aboard a neutral vessel did not, in itself, 
determine the status of the goods as contraband or 
noncontraband despite the efforts of some neutral 
countries which argued "free goods always free". 

During this period of conflict and confusion, it 
must be remembered, nations generally recognized 
the right of belligerents to capture all enemy ships 
as prizes and to seize all enemy-owned goods on 
board. In regard to neutrally owned goods on board 
the captured enemy ship, there was no clear rule to 
apply, for some nations maintained that free or neu- 
tral goods are always free while others claimed that 
neutral goods aboard an enemy ship, with the excep- 
tion of contraband of war, are free. 

1. Article 7. "All and every the subjects and inhabitants of the 
Kingdom of Sweden, as well as those of the United States, shall 
be permitted to navigate with their vessels, in all safety and freedom, 
and without any regard to those to whom the merchandizes and car- 
goes may belong, from any port whatever, and the subjects and in- 
habitants of the two States shall likewise be permitted to sail and 
trade with their vessels, and, with the same liberty and safety, to 
frequent the places, ports, and havens of Powers enemies to both or 
either of the contracting parties, without being in any wise molested 
or troubled, and to carry on a commerce not only directly from the 
ports of an enemy to a neutral port, but even from one port of an 
enemy to another port of an enemy, whether it be under the juris- 
diction of the same or of different Princes. And as it is acknowledged 
by this treaty, with respect to ships and merchandizes, that free ships 
shall make the merchandizes free, and that everything which shall 
be on board of ships belonging to subjects of the one or the other 
of the contracting parties shall be considered as free, even though 



the cargo, or a part of it, should belong to the enemies of one or 
both, it is nevertheless provided that contraband goods shall always 
be excepted; which being intercepted, shall be proceeded against 
according to the spirit of the following articles. It is likewise agreed 
that the same liberty be extended to persons who may be on board 
a free ship, unless they are soldiers in the actual service of the said 
enemies." 

Article 8. "This liberty of navigation and commerce shall ex- 
tend to all kinds of merchandizes, except those only which are 
expressed in the following article, and are distinguished by the name 
of contraband goods." 

Article 9. "Under the name of contraband or prohibited goods 
shall be comprehended arms, great guns, cannon-balls, arquebuses, 
musquets, mortars, bombs, petards, granadoes, saucisses, pitch-balls, 
carriages, for ordnance, musquet-rests, bandoleers, cannon-powder, 
matches, saltpetre, sulphur, bullets, pikes, sabres, swords, morions, 
helmets, cuirasses, halbards, javelins, pistols and their holsters, belts, 
bayonets, horses with their harness, and all other like kinds of arms 
and instruments of war for the use of troops." 

Article 10. "These which follow shall not be reckoned in the 
number of prohibited goods, that is to say. All sorts of cloths, 
and all other manufactures of wool, flax, silk, cotton, or any other 
materials ; all kinds of wearing apparel, together with the things of 
which they are commonly made ; gold, silver coined or uncoined, 
brass, iron, lead, copper, latten, ccals, wheat, barley, and all sorts 
of corn or pulse, tobacco; all kinds of spices salted and smoked 
flesh, salted fish, cheese, butter, beer, oyl, wines, sugar; all sorts of 
salt and provisions which serve for the nourishment and sustenance 
of man. all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, 
sails, sail-cloth, anchors, and any parts of anchors, ship-masts, 
planks, boards, beams, and all sorts of trees and other things proper 
for building or repairing ships. Nor shall any goods be considered as 
contraband which have not been worked into the form of any in- 
strument or thing for the purpose of war by land or by sea, much 
less such as have been prepared or wrought up for any other use, all 
which shall be reckoned free goods, as likewise all others which are 
not comprehended and particularly mentioned in the foregoing 
article, so that they shall not by any pretended interpretation be 
comprehended among prohibited or contraband goods. On the con- 
trary, they may be freely transported by the subjects of the King 
and of the United States, even to places belonging to an enemy, 
such places only excepted as are besieged, blocked, or invested; and 



these places only shall be considered as such which are nearly sur- 
rounded by one of the belligerent powers." (Treaty of Amity and 
Commerce, United States and Sweden, 1783; Malloy, Treaties, 
Conventions, II, 1727-8.) 

2. Article 16. ''This liberty of commerce and navigation shall ex- 
tend to all kinds of merchandizes, excepting those only which are 
distinguished by the name of contraband ; and under this name of 
contraband or prohibited goods shall be comprehended — 

"1st. Cannons, mortars, howitzers, swivels, blunderbusses, mus- 
kets, fuzees, rifles, carbines, pistols, pikes, swords, sabres, lances, 
spears, halberds and grenades, bombs, powder, matches, balls and all 
other things belonging to the use of these arms. 

"2d. Bucklers, helmets, breast plates, coats of mail, infantry 
belts and clothes made up in the form and for a military use. 

"3d. Cavalry belts, and horses with their furniture. 

"4th. And generally all kinds of arms and instruments of iron, 
steel, brass and copper or of any other materials manufactured, 
prepared and formed expressly to make war by sea or land." 

Article 17. "AH other merchandise and things not comprehend- 
ed in these articles of contraband, expressly enumerated and classi- 
fied as above, shall be held and considered as free and subjects 
of free and lawful commerce, so that they may be carried and trans- 
ported in the freest manner by both the contracting parties, even to 
places belonging to an enemy, excepting only those places which are 
at that time besieged or blockaded ; and, to avoid all doubt in this 
particular, it is declared that those places are only besieged or block- 
aded which are actually attacked by a force capable of preventing 
the entry of the neutral (Treaty, United States and Brazil, 1828; 
United States Naval War College, International haw Situations, 
1933,6.) 

4. Late Nineteenth Century 

With the Declaration of Paris, signed by repre- 
sentatives of Great Britain, Austria, France, Prussia, 
Russia, Sardinia, and Turkey in 1856, the nations of 
the world began to agree upon a formula for the 
treatment of neutral commerce. 

"2. Le pavilion neutre couvre la merchandise ennemie, a l'ex- 
ception de la contrebande de guerre; 

"3. La marchandise neutre, a l'exception de la contrebande de 
guerre, n'est pas saississable sous pavilion ennemi; . . ." 



7 

("2. The neutral flag covers enemy goods with the exception of 
contraband of war. 

"3. Neutral goods, with the exception of contraband of war, are 
not liable to capture under the enemy's flag.") (Declaration of 
Paris, April 16, 1856; British and Foreign State Papers, vol. 46. 
27.) 

Although the United States never signed the Dec- 
laration of Paris, provisions similar to those of the 
Declaration of Paris were included in bilateral trea- 
ties concluded by the United States with other coun- 
tries. 

Article 15. "It shall be lawful for the citizens of the United 
States of America and of the Republic of Bolivia, to sail with their 
ships, with all manner of liberty and security, no distinction being 
made who are the proprietors of the merchandises laden thereon, 
from any port to the places of those who now are, or hereafter 
shall be, at enmity with either of the .contracting parties. It shall 
likewise be lawful for the citizens aforesaid to sail with their ships 
and merchandise before mentioned, and to trade with the same 
liberty and security, not only from places and ports of those who are 
enemies of both or either party, to the ports of the other, and to 
neutral places, but also from one place belonging to an enemy, 
whether they be under the jurisdiction of one power or of several." 

Article 16. "The two high contracting parties recognize as 
permanent and immutable the following principles, to wit: 

"1st. That free ships make free goods: that is to say, that the 
effects or goods belonging to subjects or citizens of a power or 
State at war are free from capture or confiscation when found 
on board of neutral vessels, with the exception of articles contraband 
of war. 

"2d. That the property of neutrals on board an enemy's vessel 
is not subject to confiscation, unless the same be contraband of war. 

"The like neutrality shall be extended to persons who are on 
board a neutral ship with this effect, that although they may be 
enemies to both or either party, they are not to be taken out of that 
ship unless they are officers or soldiers, and in the actual service of 
the enemies. The contracting parties engage to apply these prin- 
ciples to the commerce and navigation of all such powers and States 
as shall consent to adopt them as permanent and immutable." 

Article 17. "This liberty of navigation and commerce shall 
extend to all kinds of merchandise, excepting those only which are 



8 

distinguished by the name of contraband of war, and under this 
name shall be comprehended : 

"1st. Cannons, mortars, howitzers, swivels, blunderbusses, 
muskets, fuses, rifles, carbines, pistols, pikes, swords, sabers, lances, 
spears, halberds, and grenades, bombs, powder, matches, balls, 
and all other things belonging to the use of these arms. 

"2d. Bucklers, helmets, breastplates, coats of mail, infantry-belts 
and clothes made up in the form and for a military use. 

"3d. Cavalry-belts, and horses, with their furniture. 

"4th. And, generally, all kinds of arms, offensive and defensive, 
and instruments of iron, steel, brass and copper, or any other ma- 
terials manufactured, prepared and formed expressly to make war 
by sea or land." 

Article 18. "All other merchandise and things not compre- 
hended in the articles of contraband explicitly enumerated and 
classified as above, shall be held and considered as free, and subjects 
of free and lawful commerce, so that they may be carried and trans- 
ported in the freest manner by the citizens of both the contracting 
parties, even to places belonging to an enemy, excepting only those 
places which are at that time besieged or blockaded ; and to avoid 
all doubt in his particular, it is declared that those places or ports 
only are beseiged or blockaded which are actually attacked by a 
belligerent force capable of preventing the entry of the neutral." 
(Treaty, United States and Bolivia, 1858; Malloy, Treaties, Con- 
ventions, I, 118-9.) 

Continuous Voyage and Contraband 

The doctrine of continuous voyage was developed 
by Great Britain in connection with the so-called 
'Rule of 1756' and was applied by the British Prize 
Courts only to trade between British Colonies and 
foreign countries, especially during the mercantilist 
period. As far as we know, the courts of the United 
States during the Civil War were the first to extend 
and apply the doctrine of continuous voyage to the 
carriage of contraband of war. No reported case be- 
fore this time can be found in British courts where 
this doctrine has been applied to contraband. 

This doctrine was applied by the American courts 



against British shipping during the Civil War, and 
this application seems to have been acceded to by the 
British Government of the time. This application 
was supported, moreover, by an international com- 
mission which sat under an Anglo-American treaty 
of 1871. This commission, composed of an Italian, an 
American, and a British delegate, unanimously dis- 
allowed the claims made in the case of The Peterhoff. 

The application of the doctrine of continuous voy- 
age as in The Peterhoff provided a precedent for 
British actions in World War I. After The Peterhoff 
the application of the doctrine of continuous voyage 
to absolute contraband shipped from one neutral 
state to another with a belligerent state as the ulti- 
mate destination was adopted in general practice. 
The doctrine could be applied to conditional con- 
traband shipped from one neutral state to another 
with a belligerent state as the ultimate destination 
only if it could be proved that the goods were actual- 
ly destined for the government, the military forces, 
or some other governmental institution. In The Peter- 
hoff the two types of contraband goods were dis- 
tinguished, but the names "absolute" and "condi- 
tional" were not applied to them. 

The application of the doctrine of continuous voy- 
age to contraband necessitated, therefore, as in The 
Peterhoff a clear distinction between absolute and 
conditional contraband in the minds of the court and 
an intensive examination by the court into the true 
ultimate destination of goods shipped from one neu- 
tral state to another. 

In the case of The Peterhoff, 1866, Justice Chase, 
speaking for the United States Supreme Court, de- 
clared : 

". . . Thus far we have not thought it necessary to discuss the 
question of actual destination beyond Matamoras. Nor need we 



10 

say more upon that general question than that we think it a fair 
conclusion from the whole evidence that the cargo was to be dis- 
posed of in Mexico or Texas as might be found most convenient 
and profitable to the owners and consignees, who were either at 
Matamoras or on board the ship. Destination in this case becomes 
specially important only in connection with the question of contra- 
band. 

"And this brings us to the question: was any portion of the 
cargo of the Peterhoff contraband? 

"The classification of goods as contraband or not contraband 
has much perplexed text-writers and purists. A strictly accurate 
and satisfactory classification is perhaps impracticable ; but that 
which is best supported by American and English decisions may be 
said to divide all merchandise into three classes. Of these classes, the 
first consists of articles manufactured and primarily and ordinarily 
used for military purposes in time of war; the second, of articles 
which may be and are used for purposes of war or peace, accord- 
ing to circumstances; and the third, of articles exclusively used for 
peaceful purposes. Lawrence's Wheaton, 772-776, note; The 
Commercen, 1 Wheaton, 382, Dana's Wheaton, 629, note; Par- 
sons', Mar. Law, 93-94. Merchandise of the first class, destined 
to a belligerent, is always contraband ; merchandise of the second 
class is contraband only when actually destined to the military or 
naval use of a belligerent ; while merchandise of the third class is not 
contraband at all, though liable to seizure and condemnation for 
violation of blockade or siege. 

"A considerable portion of the cargo' of the Peterhoff was of the 
third class and need not be further referred to. A large portion, 
perhaps, was of the second class, but is not proved, as we think, 
to have been actually destined to belligerent use, and cannot there- 
fore be treated as contraband. Another portion was, in our judg- 
ment, of the first class, or, if of the second, destined directly to the 
rebel military service. This portion of the cargo consisted of the 
cases of artillery harness, and of articles described in the invoices as 
"men's army bluchers," "artillery boots," and "government reg- 
ulation gray blankets." These goods come fairly under the de- 
scription of goods primarily and ordinarily used for military purposes 
in time of war. They make part of the necessary equipment of an 
army. 

"It is true that even these goods, if really intended for sale in the 
market of Matamoras, would be free of liability; for contraband 
may be transported to neutrals to a neutral port, if intended to make 



11 

part of its general stock in trade. But there is nothing in the case 
which tends to convince us that such was their real destination, 
while all the circumstances indicate that these articles, at least, were 
destined for the use of the rebel forces then occupying Brownsville, 
and other places in the vicinity. 

"And contraband merchandise is subject to a different rule in re- 
spect to ulterior destination than that which applies to merchandise 
not contraband. The latter is liable to capture only when a violation 
of blockade is intended ; the former when destined to the hostile 
country, or to the actual military or naval use of the enemy, whether 
blockaded or not. The trade of neutrals with belligerents in articles 
not contraband is absolutely free, unless interrupted by blockade ; 
the conveyance by neutrals to belligerents of contraband articles is 
always unlawful, and such articles may aways be seized during 
transmit by sea. Hence, while articles, not contraband, might be 
sent to Matamoras, and beyond to the rebel region, where the 
communications were not interrupted by blockade, articles of a 
contraband character, destined in fact to> a State in rebellion, or for 
the use of the rebel military forces, were liable to capture, though 
primarily destined to Matamoras. 

"We are obliged to conclude that the portion of the cargo which 
we have characterized as contraband must be condemned." The 
Peterhoff, 1866. An American Case. 5 Wall 28. Briggs, H. W-, 
The Law of Nations, (New York, 1938), 917-8.) 
5. Twentieth Century Before World War I 

Belligerent destination and purpose remained, at 
the beginning of the twentieth century, as the general 
criteria for contraband of war. Conscious efforts were 
made to establish two definitive categories and lists 
of contraband: (1) absolute and (2) conditional, 
consequently adding refinements and conditions in 
regard to destination and purpose. The doctrine of 
continuous voyage was to apply only to absolute con- 
traband. 

1. Article 34. "The term 'contraband of war' in- 
cludes only articles having a belligerent destination 
and purpose. Such articles are classed under two 
general heads: 

" ( 1 ) Articles that are primarily and ordinarily used for military 
purposes in time of war, such as arms and munitions of war, mili- 



12 

tary material, vessels of war, or instruments made for the immediate 
manufacture of munitions of war. 

"(2) Articles that may be and are used for purposes of war or 
peace, according to circumstances." 

"Articles of the first class, destined for ports of the enemy or 
places occupied by his forces, are always contraband of war." 

"Articles of the second class, when actually and especially des- 
tined for the military or naval forces of the enemy, are contraband 
of war." (United States Naval War Code of 1900. United States 
Naval War College, International Law Discussions, 1903, 82.) 

2. During the Russo-Japanese War, the Vladi- 
vostok Prize Court condemned a shipment of flour, 
part of the cargo on board the Arabia. The Ameri- 
can Ambassador to Russia reported Russia's attitude 
as being as follows: 

". . . to unconditionally accept as noncontraband all merchandise 
not universally accepted or described in their own rules as such 
would open the door to contractors in Japan to import food stuffs 
and other merchandise without limit for account of the Japanese 
Government ; that is, on account of or in destination of the enemy. 
That the Russian Government could not but consider as contraband 
a cargo of flour consigned to a port at which was quartered a large 
body of troops, and that extending this principle the ultimate des- 
tination of the cargo had to be taken into consideration, although 
its direct consignment might be to a merchant in an open port." 
(Ambassador McCormick to Secretary of State Hay, Sept. 21, 
1904, United States Foreign Relations, 1904, 767-8.) 

3. The Japanese Prize Courts in 1905 held that a 
cargo of rock salt on board the Antiope was contra- 
band because it was destined for preserving fish for 
the Russian military forces. {Russian and Japanese 
Prize Cases, II, 389.) 

4. The American attitude during this period 
toward contraband is indicated partially in further 
documents regarding the case of the Arabia. 

"The same criterion of decision is announced by Kent, Halleck, 
and other authoritative publicists — that if the port be a general 
commercial one, it is presumed that the articles are intended for 
civil use, but if the great predominant character of the port is 
that of a port of naval equipment, it will be presumed that the 



13 

articles were going fior military use, and that the presumption of 
innocence exists in all cases when they are destined to a commercial 
port." (Instruction of Secretary of State Hay to Ambassador 
McCormick, Jan. 13, 1905. United States Foreign Relations, 
1905, 747.) 

In 1914 the Department of State instructed the 
Charge d'Affaires in Russia to present a claim to the 
Russian Government for the loss due to the con- 
demnation of part of the flour. 

". . . In the absence of information as to the consignees or of 
the transaction in which the flour here in question was involved, 
the master was not in a position to assert the fact of its private 
commercial destination. However, this does not in any way affect 
the views of this Government in relation to the case under discus- 
sion, namely, in the absence of consignment to enemy authorities or 
to an enemy contractor who as a matter of common knowledge 
supplied articles of this kind to the enemy, or to a fortified place of 
the enemy or to another place serving as a base for the armed forces 
of the enemy, the non-hostile destination of the flour was to be pre- 
sumed, and therefore that the burden of proving the non-hostile 
destination of the flour was not cast upon the owners or their 
representatives, but that it was for the captors to prove its hostile 
destination." (The solicitor for the Department of State, Johnson, 
to the Charge d'Affaires ad interim in Russia, Wilson, July 9, 
1914; Hackworth, G. H., Digest of International Law, VII, 79.) 

5. In a case involving an American shipping com- 
pany which had canceled a contract for carrying flour 
to Japan because Russia had declared "provisions" 
to be contrband, the following opinion was expressed 
by an American court: 

"Flour may probably be considered as a provision prepared for 
immediate use ; but as to whether it was designed that the product 
in the present instance should go to a naval or military equipment 
station, there is no proof except that Japan was in a state of war. 
Ordinarily, therefore, the presumption would prevail that the flour 
was going to Japan for civil use, and would not be contraband ex- 
cept that it was declared to be so by one of the belligerents. Perhaps 
a mere declaration by a belligerent nation that articles of commerce 
are contraband, when by the rules of international law they are not, 
would not make them so. But here is a proclamation touching pro- 



14 

visions that rest upon the border line, and depend for their real 
character upon the particular state of the port of their destination, 
whether engaged in civil pursuits only, or in the equipping of either 
the army or the navy with war supplies. It would seem that, under 
such conditions, the proclamation of one of the governments at war 
would be effective to impress the provisions with the character of 
contraband. At any rate, I am inclined so to treat the flour con- 
cerned here." {Balfour, Guthrie and Co. v. Portland and Asiatic 
S. S. Co., 167 Fed. 1010, 1015. (D. Oreg., 1909.) 

6. In regard to contraband, Secretary of State Root 
charged the American delegates to the Hague Con- 
ference of 1907 as follows: 

". . . It is of the highest importance that not only the rights but 
the duties of neutrals shall be most clearly and distinctly defined 
and understood, not only because the evils which belligerent nations 
bring upon themselves ought not to be allowed to spread to their 
peaceful neighbors and inflict unnecessary injury upon the rest of 
mankind, but because misunderstandings regarding the rights and 
duties of neutrals constantly tend to involve them in controversy 
with one or the other belligerent. 

''For both of these reasons, special consideration should be given 
to an agreement upon what shall be deemed to constitute contra- 
band of war. There has been a recent tendency to extend widely 
the list of articles to be treated as contraband ; and it is probable 
that if the belligerents themselves are to determine at the begin- 
ning of a war what shall be contraband, this tendency will continue 
until the list of contraband is made to include a large proportion cf 
all the articles which are the subject of commerce, upon the ground 
that they will be useful to the enemy. When this result is reached, 
especially if the doctrine that free ships make free goods and the 
doctrine that blockades in order to be binding must be effective, 
as well as ,any rule giving immunity to the property of belligerents 
at sea, will be deprived of a large part of their effect, and we 
shall find ourselves going backward instead of forward in the 
effort to prevent every war from becoming universally disastrous. 
The exception of contraband of war in the Declaration of Paris will 
be so expanded as to very largely destroy the effect of the declara- 
tion. On the other hand, resistance to this tendency toward the 
expansion of the list of contraband ought not to be left to the 
neutrals affected by it at the very moment when war exists, because 
that is the prccess by which neutrals become themselves involved 



15 

in war. You should do all in your power to bring about ,an agree- 
ment upon what is to constitute contraband ; and it is very desirable 
that the list should be limited as narrowly as possible." (Secretary 
of State Root to the Delegates of the United States to the Hague 
Conference of 1907, May 31, 1907; United States Foreign Rela- 
tions, 1907, pt. 2, 1138.) 

7. The Hague Conference of 1907 came to no 
agreement on this subject, but the Declaration of 
London in 1909 embodied many provisions for con- 
traband. An elaborate attempt was made through the 
Declaration of London to list all articles entering 
into commerce in three categories : (1) absolute con- 
traband, (2) conditional contraband, and (3) never 
contraband. 

Article 22. "The following articles may, without notice, be 
treated as contraband of war, under the name of absolute con- 
traband : 

"(1) Arms of all kinds, including arms for sporting purposes, 
and their distinctive component parts. 

"(2) Projectiles, charges and cartridges of all kinds, and their 
distinctive component parts. 

"(3) Power and explosives specially prepared for use in war. 

"(4) Gun-mountings, limber boxes, limbers, military wagons, 
field forges, and their distinctive component parts. 

"(5) Clothing and equipment of a distinctively military char- 
acter. 

"(6) All kinds of harness of a distinctively military character. 

"(7) Saddle, draught, and pack animals suitable for use in war. 

"(8) Articles of camp equipment, and their distinctive com- 
ponent parts. 

"(9) Armour plates. 

"(10) Warships, including boats, and their distinctive com- 
ponent parts of such a nature that they can only be used on a 
vessel of war. 

"(11) Implements and apparatus designed exclusively for the 
manufacture of munitions of war, for the manufacture or repair of 
arms, or war material for use on land or sea." 

Article 23. "Articles exclusively used for war may be added 
to the list of absolute contraband by a declaration, which must be 
notified. 



16 

"Such notification must be addressed to the Governments of 
other Powers, or to their representatives (accredited to the Power 
making the declaration. A notification made after the outbreak of 
hostilities is addressed only to neutral Powers." 

Article 24. "The following articles, susceptible of use in war 
as well as for purposes of peace, may, without notice, be treated as 
contraband of war, under the name of conditional contraband: 

"(1) Foodstuffs. 

"(2) Forage and grain, suitable for feeding animals. 

"(3) Clothing, fabrics for clothing, and boots and shoes, suit- 
able for use in war. 

"(4) Gold and silver in coin or bullion; paper money. 

"(5) Vehicles of all kinds available for use in war, and their 
component parts. 

"(6) Vessels, craft, and boats of all kinds; floating docks, parts 
of docks and their component parts. 

"(7) Railway material, both fixed and rolling-stock, and mate- 
rial for telegraphs, wireless telegraphs, and telephones. 

"(8) Balloons and flying machines and their distinctive com- 
ponent parts, together with accessories and articles recognizable as 
intended for use in connection with balloons and flying machines. 

"(9) Fuel; lubricants. 

"(10) Powder and explosives not specially prepared for use 
in war. 

"(11) Barbed wire and implements for fixing and cutting the 
same. 

"(12) Horseshoes and shoeing materials. 

"(13) Harness and saddlery. 

"(14) Field glasses, telescopes, chronometers, and all kinds of 
nautical instruments." 

Article 25. "Articles susceptible for use in war as well as for 
purposes of peace, other than those enumerated in Articles 22 and 
24, may be added to the list of conditional contraband by a declara- 
tion, which must be notified in the manner provided for in the 
second paragraph of Article 23." 

Article 26. "If a Power waives, so far as it is concerned, the 
right to treat as contraband of war an article comprised in any of 
the classes enumerated in Articles 22 and 24, such intention shall 
be announced by a declaration, which must be notified in the man- 
ner provided for in the second paragraph of Article 23." 

Article 27. "Articles which are not susceptible of use in war 
may not be declared contraband of war." 



17 

Article 28. "The following may not be declared contraband 

of war: 

"(1) Raw cotton, wool, silk, jute, flax, hemp, and other raw 
materials of the textile industries, and yarns of the same. 

"(2) Oil seeds and nuts; copra. 

"(3) Rubber, resins, gums, and lacs; hops. 

"(5) Natural and artificial manures, including nitrates and 
phosphates for agricultural purposes. 

"(6) Metallic ores. 

"(7) Earths, clays, lime, chalk, stone, including marble, bricks, 
slates, and tiles. 

"(8) Chinaware and glass. 

"(9) Paper and paper-making materials. 

"(10) Soap, paint and colors, including articles exclusively used 
in their manufacture, and varnish. 

"(11) Bleaching powder, soda ash, caustic soda, salt cake, am- 
monia, sulphate of ammonia, and sulphate of copper. 

"(12) Agricultural, mining, textile, and printing machinery. 

"(13) Precious and semi-precious stones, pearls, mother-of- 
pearl, and coral. 

"(14) Clocks and watches, other than chronometers. 

"(15) Fashion and fancy goods. 

"(16) Feathers of all kinds, hairs, and bristles. 

"(17) Articles of household furniture and decoration; office 
furniture and requisites." 

Article 29. "Likewise the following may not be treated as 
contraband of war: 

"(1) Articles serving exclusively to aid the sick and wounded. 
They can, however, in case of urgent military necessity and subject 
to the payment of compensation, be requisitioned, if their destina- 
tion is that specified in Article 30. 

"(2) Articles intended for the use of the vessel in which they 
are found, as well as those intended for the use of her crew and 
passengers during the voyage." 

Article 30. "Absolute contraband is liable to capture if it is 
shown to be destined to territory belonging to or occupied by the 
enemy, or to the armed forces of the enemy. It is immaterial 
whether carriage of the goods is direct or entails transshipment 
or a subsequent transport by land." 

Article 31. "Proof of the destination specified in Article 30 
is complete in the following cases: 

"( 1 ) When the goods are documented for discharge in an enemy 



18 

port, or for delivery to the armed forces of the enemy. 

" (2) When the vessel is to call at enemy ports only, or when she 
is to touch at an enemy port or meet the armed forces of the enemy 
before reaching the neutral port for which the goods in question 
are documented." 

Article 32. "Where a vessel is carrying absolute contraband, 
her papers are conclusive proof as to the voyage on which she is 
engaged, unless she is found clearly out of the course indicated by 
her papers and unable to give adequate reasons to justify such 
deviation." 

Article 33. "Conditional contraband is liable to capture if it 
is shown to be destined for the use of the armed forces or of a 
government department of the enemy State, unless in this latter 
case the circumstances show that the goods cannot in fact be used 
for the purposes of the war in progress. This latter exception does 
not apply to a consignment coming under Article 24 (4)." 

Article 34. "The destination referred to in Article 33 is pre- 
sumed to exist if the goods are consigned to enemy authorities, or 
to a contractor established in the enemy country who, as a matter 
of common knowledge, supplies articles of this kind to the enemy. 
A similar presumption arises if the goods are consigned to a forti- 
fied place belonging to the enemy, or other place serving as a base 
for the armed forces of the enemy. No such presumption, however, 
arises in the case of a merchant vessel bound for one of these 
places if it is sought to prove that she herself is contraband. 

"In cases where the above presumptions do not arise, the destina- 
tion is presumed to be innocent. 

"The presumptions set up by this Article may be rebutted." 

Article 35. "Conditional contraband is not liable to capture, 
except when found on board a vessel bound for territory belonging 
to or occupied by the enemy, or for the armed forces of the enemy, 
and when it is not to be discharged in an intervening neutral port. 

"The ship's papers are conclusive proof both as to the voyage 
on which the vessel is engaged and as to the port of discharge of 
the goods, unless she is found clearly out of the course indicated 
by her papers, and unable to give adequate reasons to justify such 
deviation." 

Article 36. "Notwithstanding the provisions of Article 35, 
conditional contraband, if shown to have the destination referred 
to in Article 33, is liable to capture in cases where the enemy 
country has no seaboard." 

Article 37. "A vessel carrying goods liable to capture as ab- 



19 

solute or conditional contraband may be captured on the high seas 
or in the territorial waters of the belligerents throughout the whole 
of her voyage, even if she is to touch at a port of call before reaching 
the hostile destination." 

Article 38. "A vessel may not be captured on the ground that 
she has carried contraband on a previous occasion if such carriage 
is in point of fact at an end." 

Article 39. "Contraband goods are liable to condemnation." 

Article 40. "A vessel carrying contraband may be condemned 
if the contraband, reckoned either by value, weight, volume, or 
freight, forms more than half the cargo." 

Article 41. "If a vessel carrying contraband is released, she 
may be condemned to pay the costs and expenses incurred by the 
captor in respect of the proceedings in the national prize court 
and the custody of the ship and cargo during the proceedings." 

Article 42. "Goods which belong to the owner of the contra- 
band and are on board the same vessel are liable to condemnation." 

Article 43. "If a vessel is encountered at sea while unaware 
of the outbreak of hostilities of the declaration of contraband which 
applies to her cargo, the contraband cannot be condemned except 
on payment of compensation ; the vessel herself and the remainder 
of the cargo are not liable to condemnation or to the costs and 
expenses referred to in Article 41. The same rule applies if the 
master, after becoming aware of the outbreak of hostilities, or of 
the declaration of contraband, has had no opportunity of discharg- 
ing the contraband. 

"A vessel is deemed to be aware of the existence of a state of war, 
or of a declaration of contraband, if she left a neutral port sub- 
sequently to the notification to the Power to which such port 
belongs of the outbreak of hostilities or of the declaration of 
contraband respectively, provided that such notification was made 
in sufficient time. A vessel is also deemed to be aware of the ex- 
istence of a state of war if she left an enemy port after the outbreak 
of hostilities." 

Article 44. "A vessel which has been stopped on the ground 
that is she carrying contraband, and which is not liable to condemna- 
tion on account of the proportion of contraband on board, may, 
when the circumstances permit, be allowed to continue her voyage 
if the master is willing to hand over the contraband to the 
belligerent warship. 

"The delivery of the contraband must be entered by the captor 



20 

on the logbook of the vessel stopped, and the master must give the 
captor duly certified copies of all relevent papers. 

"The captor is at liberty to destroy the contraband that has been 
handed over to him under these conditions." (Declaration of Lon- 
don, 1909. Not ratified. Correspondence and Documents Respecting, 
the International Naval Conference, held in London, Dec. 1908 — 
Fieb. 1909, Parliamentary Papers, [Cd. 4554], Misc. No. 4 
(1909), 78-84.) 

8. In 1910 Russia, in answer to an American claim 
on behalf of the American owners of cargo of kero- 
sene, seized and condemned by Russia during the 
Russo-Japanese War, declared: 

"The Court of course could not but take note of the decisive 
circumstance in this instance that had the destination of the 'Old- 
hamia's' cargo really been innocent and not destined for military 
purposes, the following characteristic facts, thoroughly verified in 
Court, certainly could not have occurred : 

" ( 1 ) At the moment of her detention by the Russian cruiser the 
steamer 'Oldhamia' was proceeding ivithout lights. 

"(2) Upon detention of the vessel no charter-party was pro- 
duced to the Russian naval authorities during the examination of 
the steamer and cargo. 

"(3) The manifest stated that the vessel was to discharge at 
HongKong, whereas when detained she was proceeding from 
HongKong in the direction of Japan. 

"(4) Similar incorrect evidence as to the course of the vessel to 
HongKong was given by the crew of the 'Oldhamia' during the 
examination. 

"(5) Subsequently, upon searching the vessel, there was found 
correspondence addressed to the Captain of the 'Oldhamia' from 
which it was made clear that the cargo had been accepted by the 
steamer from the Standard Oil Company especially for carriage to 
Japan. 

"These facts are of course of the first importance, and the con- 
duct of the Captain and crew — especially as the question is one 
of 'relative' contraband, i. e., liable to confiscation only if destined 
for military purposes — proved in this instance the deciding factor 
in arriving at a conclusion respecting the hostile or harmless des- 
tination of the cargo. The Imperial Government therefore can in no 
way agree with the point of view of the note of July 10/23 declar- 
ing that 'the character of the cargo itself is the sole essential question 



21 

here, and the conduct of the crew has no significance'. In contra- 
distinction to cases of carriage of absolute contraband — where such 
argument (with certain reservations) generally speaking would 
be true — in cases of carriage of relative contraband, its character 
(i.e., the real distinction of the cargo) is often ascertained pre- 
cisely from the conduct of the crew, and such facts as for instance 
the concealment of papers or the false evidence of the crew, from the 
point of view of modern international law, are unquestionably 
decisive in the sense of presumption of the military destination of the 
cargo, which is liable in such event to confiscation ..." {The 
Oldhamia, 1910. Hackworth, G. H., Digest of International Law, 
VII, 65-6. See Russian and Japanese Prize Cases, I, 145.) 

9. "It is not seen . . . that according to the Declaration of London, 
the misleading character of the ship's papers in this case and the 
action of the Captain and crew raised a presumption of hostile des- 
tination. They simply destroyed the value of the ship's papers as 
evidence of the destination, and apparently showed that the vessel 
was destined, generally, to Japan. Their destination in Japan is still 
presumed innocent, unless the consignment is addressed or destined, 
as set forth in Article 34, and it is not understood that there is any 
direct proof thereof in this case." (Memorandum of the Office of 
the Solicitor for the United States Department of State, Nov. 22, 
1910 in regard to The Oldhamia and the Russian reply to the 
American claim. Hackworth, G. H., Digest of International Law, 
VII, 66.) 

10. "In 1800 an American vessel carrying an American-owned 
cargo which included seven horses, bound to the British island of 
Antigua, was seized by a French privateer, and the vessel and cargo 
were condemned by a French prize court, inter alia, for carriage of 
contraband. The Court of Claims, passing on this as one of the 
French Spoliation Claims, upheld the findings of the French court 
the Antigua was a base of military and naval equipment. The 
court stated that whether horses were contraband depended on the 
probable use to be made of them at their destination and that such 
use was presumed to be hostile because of the character of the 
port." {The Brig Rensalder, 1913. Commentary, Hackworth, G. 
H., Digest of International Law, VII, 70. See 49 Court of Claims 

1.0 

11. "An American brig sailed in 1797 from Baltimore bound for 
the Swedish island of St. Bartholomew, carrying a cargo of pro- 
visions. The vessel was shown to have the Britsh island of Antigua 
as its real destination. It was seized on the high seas in the vicinity 



22 

of Antigua by a French privateer and condemned by a French prize 
court for carrying food assumed to be for the British Army at An- 
tigua. The Court of Claims — passing on this as one of the French 
Spoliation Claims — held that the condemnation was illegal regard- 
less of the treaty of 1778 between the United States and France. 
The court examined at some length the situation prevailing on the 
island at the time, including the fact that a food shortage existed, 
that slaves were greatly in the majority, and that troops were held 
there to guard against an uprising, and concluded that 'All of the 
foregoing goes to negative any presumption that food-stuffs destined 
for the island of Antigua were for the supply of a few troops sta- 
tioned there.' " The Brig Sally, 1915, Commentary, Hackworth, G. 
H., Digest of International Law, VII, 70. See 50 Court of Claims 
129, 136.) 

12. The following dispatch of October 19, 1911 
shows that the Declaration of London of 1909 was 
operative during the Turco-Italian War in 1911-12: 

"By a royal decree of October 13 the following instructions were 
approved in conformity with the principles of the Declaration of 
Paris, April 16, 1856, which belligerent countries are bound to re- 
spect, with the rules of The Hague Conventions of October 18, 
1907, and of the Declaration of London of February 26, 1909, 
which the Government of the King desires to be respected as well, 
so far as the provisions of the laws in force in the Kingdom allow, 
although they have not yet been ratified by Italy; and they will 
serve to regulate the conduct of naval commanders in the opera- 
tions of capture and prize during the war." (United States Naval 
War College, International Law Situations, 1912, 108.) 

6. World War I. 

At the outbreak of World War I, most of the pro- 
visions of the Declaration of Paris and the unratified 
Declaration of London were followed by the war- 
ring nations in treating neutral and enemy commerce. 
As the war continued some of these provisions were 
retained, but most of them were altered as methods 
of warfare developed and conditions changed. 
(1) Rules as of 1914. 

1. In 1914 the following propositions concerning 
contraband were generally accepted as law: 



23 

1. "Even enemy goods are safe on a neutral ship, if they are not 
contraband . . . . 

2. "Neutral goods are safe even on an enemy ship, if they are 
not contraband. . . . 

3. "A fortiori, neutral goods are safe on a neutral ship but only 
if they are not contraband . ..." 

4. "Contraband goods are divided into two catagories: absolute 
and conditional." 

5. "Absolute contraband consists of goods exclusively used for 
war and destined for an enemy country, even if passing through a 
neutral country en route; the rule of 'continuous voyage' applies." 

6. "Conditional contraband consists of goods which may have a 
peaceful use but which are also susceptible of use in war and which 
are destined for the armed forces or a government department of a 
belligerent state; the rule of 'continuous voyage' does not apply." 
(P. C. Jessup's preface to Neutrality, Its History, Economics and 
Law. vol. Ill, The World War Period (Turlington, 1936), x.) 

2. "The sale or shipment of contraband of war by citizens of the 
United States to citizens or subjects of any of the belligerent powers, 
in course of commerce, is not prohibited by the neutrality laws or 
the President's proclamation. But contraband, whether shipped 
in vessels of the belligerents or neutrals, is subject to seizure and 
confiscation by the belligerents, and when so seized is not entitled 
to the protection or intervention of this Government." 

"When absolute contraband is destined to one of the countries 
at war, whether to the government or to an individual of that 
country, it is subject to seizure and confiscation by any of the oppos- 
ing belligerents when beyond the territory of the neutral govern- 
ment from which it is shipped." 

"Vessels flying the flag of one of the belligerents are subject to 
seizure and confiscation by the opposing belligerents. Contraband of 
war on board of such vessel is, of course, subject to confiscation, 
though the property of a neutral. 

"Goods, not contraband, belonging to a neutral aboard a captured 
vessel are subject to delay and interruption consequent upon the seiz- 
ure of the vessel, but not to confiscation, upon manifestation of 
neutral ownership and the non-contraband character of the goods. 

"When a vessel containing cargo of a citizen of the United 
States is captured and is carried before a prize court, as it will be 
presumably, he should give notice of his claim of property to the 
prize-court authorities and be prepared to furnish proof of his 
ownership and the non-contraband character of his goods. 



24 

"Goods of a neutral, not contraband of war, shipped on a neutral 
vessel are not rightfully subject to seizure or confiscation by any of 
the belligerents, and it is not presumed that the vessels of neutrals 
carrying only non-contraband cargoes will be interfered with." 

Contraband of war "is ranked under two heads, namely, absolute 
and conditional." Absolute contraband "includes those articles 
which are peculiarly adapted to war, such as arms and ammunition 
and military and naval equipment." Conditional contraband "con- 
sists, generally speaking, of articles which are susceptible of use in 
war as well as for purposes of peace," and, therefore, "their des- 
tination determines whether they are contraband or non-contra- 
band." (Public circular issued by the Department of State, Aug. 
15, 1914; United States Foreign Relations, 1914, Supplement, 
274-7.) 

3. "His Majesty's Government cordially concur in the principle 
enunciated by the Government of the United States that a belliger- 
ent, in dealing with trade between neutrals, would not interfere 
unless such interference is necessary to protect the belligerent's 
national safety, and then only to the extent to which this is neces- 
sary. We shall endeavori to keep our action within the limits of this 
principle on the understanding that it admits our right to interfere 
when such interference is not with bona fide trade between the 
United States and another neutral country, but with trade in con- 
traband destined for the] enemy's country, and we are ready, when- 
ever our action may unintentionally exceed this principle, to make 
redress." (British Foreign Office reply to American note. Ambas- 
sador 1 Page to Secretary of State Bryan, telegram, Jan. 7, 1915; 
United States Foreign Relations, 1915, Supplement, 299-300.) 

Changes in Contraband Lists. 

The government of the United States attempted to 
gain in the early days of the war a general agreement 
to the Declaration of London from all belligerents. 
The belligerents, however, declared it necessary to 
transfer certain goods, aircraft for example, from the 
conditional to the absolute list. Such transfers were 
even allowed under the terms of the unratified Decla- 
ration of London. Although there was much inter- 
change of opinion between the belligerents and neu- 
trals in regard to contraband, no general agreement 



25 

was ever reached. As the war continued, the bel- 
ligerents surpassed each other in going beyond the 
ordinary bounds of international law, using retalia- 
tion in self-defense as a justification for avoiding its 
obligations under international law. The generally 
weaker neutral nations had to submit to these actions. 
In the case of contraband lists, the lists remained, but 
as goods were rapidly shifted from the free to the 
conditional and then to the absolute list, the distinc- 
tion between absolute and conditional disappeared. 
By the end of the war, all contraband was absolute 
contraband, for with total warfare it was soon pre- 
sumed that all goods even food stuffs, were destined 
to the enemy government. 

1. "On August 6, 1914, the American Secretary of State address- 
ed to the American Ambassadors in the belligerent states and the 
Minister to Belgium an inquiry as to whether the respective states 
were 'willing to agree that the laws of naval warfare laid down by 
the Declaration of London, 1909, shall be applicable to naval war- 
fare during the present European conflict, provided that the gov- 
ernments with whom' they were or might be at war also agree to 
such application. The Secretary also said, 'You will further state 
that this Government believes that acceptance of these laws by the 
belligerents would prevent grave misunderstandings which may 
arise as to the relations between belligerent and neutral powers. It, 
therefore, earnestly hopes that this inquiry may receive favorable 
consideration.' " (United States Naval War College, International 
Law Situations, 1933, 10; United States Foreign Relations, 1914, 
Supplement, 216.) 

2. "The British Government had on August 5, 1914, made 
known that it would regard as contraband the articles named as 
absolute and conditional contraband in the Declaration of London 
with the transfer of aircraft from the conditional to the absolute 
list." (United States Naval War College, International Law Sit- 
uations, 1933, 10; United States Foreign Relations, 1914, Supple- 
ment, 215-6.) 

3. For British lists and changes therein, see United 
States Foreign Relations, 1914, Supplement, 215-216, 
236, 245, 261-262, 269-270; United States Foreign 



26 

Relations, 1915, Supplement, 137, 160, 165, 174-177; 
United States Foreign Relations, 1916, Supplement, 
385-387, 405, 453, 486; United States Foreign Rela- 
tions, 1917, Supplement 1,492; United States Foreign 
Relations, 1918, Supplement I, 917-918. 

French contraband lists conformed to the British. 

4. At the beginning of the war, the German and 
Austro-Hungarian Governments announced that 
their lists of contraband would conform to those in 
the Declaration of London. For these lists and later 
changes, see United States Foreign Relations, 1914, 
Supplement, 216, 222, 266; United States Foreign 
Relations, 1915, Supplement, 162-163, 607; United 
States Foreign Relations, 1916, Supplement, 281. 

5. Japan also announced a list which conformed 
to the Declaration of London except for the inclusion 
of aircraft as absolute contraband. See United States 
Foreign Relations, 1914, Supplement, 179; United 
States Naval War College, International Law Docu- 
ments, 1925, 146, 152. 

6. ". . . . The United States stands ready either to accept the 
declaration as a whole, provided all of the belligerents accept it, or, 
to accept it for the period of the war with modifications and addi- 
tions acceptable, on the one hand, to the United States and the 
Netherlands, the two neutral signatories, and, on the other hand, 
to all of the belligerents. 

"This Government in seeking general acceptance of the declara- 
tion as a code of naval warfare for the present war had in mind 
the adoption of the declaration as a whole and not such part of it 
as might be acceptable to certain belligerents and not to other bel- 
ligerents. It considered that the declaration was to be applied as a 
complete code of which no rule could be ignored or supplemented, 
and in so doing it followed Article 65 of the declaration, which 
stipulates : 'The provisions of the present declaration must be treat- 
ed as a whole and cannot be separated.' 

"The only reasonable explanation for the inclusion in the declara- 
tion of this requirement is that the instrument is composed largely 
of compromises on the part of the government represented at the 
conference. Although the declaration is introduced with a general 



27 

statement that 'the signatory powers are agreed' that the rules 
contained in the declaration 'correspond in substance with the 
generally recognized principles of international law,' the pro- 
ceedings of the conference as well as the documents relating to it 
prove that an agreement on many of the articles was reached 
through reciprocal concessions. Being conceived in compromise and 
concession the declaration was accepted by the Government of the 
United States at the conference in London in the earnest hope that 
it might finally compose the differences which existed as to neutral 
rights and neutral duties, although in so accepting this Government 
was compelled to abandon certain rules of conduct which it has 
heretofore always maintained. 

7. "As might be expected in a settlement of divergent views and 
practices by mutual concession the Declaration of London contains 
provisions both advantageous and disadvantageous to the respective 
interests of neutrals and belligerents. But it is now proposed by 
Great Britain to retain all the provisions favorable to belligerents 
and to recast other provisions so that they will be less favorable to 
neutral interests. The result is a set of rules which limits neutrals' 
rights far more than does the declaration itself treated as a whole. 
War, in any event, bears heavily upon a neutral nation. The inter- 
ruption of its commerce and the limitations placed upon its trade 
are sufficiently burdensome under the rules of the Declaration of 
London. In consenting to those rules the Government of the United 
States made great concessions on its part and it does not feel that it 
can, in justice to its own people, go further. It cannot consent to 
the retention of a part of this compromise settlement and to the 
rejection of another part. The adoption of the declaration so 
modified is contrary to the customary procedure incident to com- 
promise settlements, to the express provisions of the declaration it- 
self, and to the spirit which induced its signature." (Acting Secre- 
tary of State, Sept. 26, 1914. {United States Foreign Relations, 
1914, Supplement, 221 '. United States Naval War College, Inter- 
national Law Situations, 1933, 11-12.) 

8. "A discussion of the provisions of the order in council followed 
in which the Ambassador said that he agreed that the Order in 
Council practically made foodstuffs absolute contraband, which 
was contrary to the British traditional policy as well as to that of 
the United States. He said that the immediate cause had been the 
introduction through Rotterdam in first days of the war of large 
quantities of food supplies for the German army in Belgium, and 
that it seemed absolutely necessary to stop this traffic. 



28 

"I replied that, while I appreciated that such reasons must weigh 
very heavily with those responsible for the successful conduct of the 
war, it seemed unfortunate that some other means could not have 
been found to accomplish the desired purpose, either by getting the 
Netherlands to place an embargo on foodstuffs and other condition- 
al contraband or by agreeing not to export such articles. The 
Ambassador said that he agreed that would be much the better 
way, and that he believed it could be done. 

"He said that now the chief anxiety to be in regard to shipments 
of copper and petroleum and also of Swedish iron, and that the 
British Government was stopping vessels with such cargoes and pur- 
chasing them. He suggested that possibly the difficulty created by the 
Order in Council could be removed by rescinding it and adding 
to the list of absolute contraband petroleum products, copper, 
barbed wire and other articles of like nature now used almost ex- 
clusively for war purposes. 

"I said that as to this suggestion I could not speak for the Gov- 
ernment but that it seemed worthy of consideration as it might offer 
a means of getting rid of the order in council which certainly men- 
aced the very friendly relations existing if it became the subject of 
discussion by the press. I told him that I did not think that the 
feeling which the Order in Council would arouse when generally 
understood, would be among the shippers as much as among the 
American public at large; and that, even if no case arose under it, 
the fact that the British Government had issued a decree, which 
menaced the commercial rights of the United States as a neutral, 
in violation of the generally accepted rules of international law, 
would undoubtedly cause irritation, if not indignation, and might 
change the sentiment of the American people, of which Great 
Britain had no reason to complain at the present time." (A memor- 
andum of a conference of Acting Secretary Lansing with the British 
Ambassador on September 29, 1914. United States Foreign Rela- 
tions, 1914, Supplement, 234. United States Naval War College, 
International Law Situations, 1933, 12-13.) 

9. "The desire of this Government is to obtain from the British 
Government the issuance of an Order in Council adopting the 
declaration without any amendment whatsoever and to obtain from 
France and Russia like decrees, which they will undoubtedly issue 
if Great Britain sets the example. Such an adoption by the allied 
Governments will put in force the acceptance of the Declaration 
of London by Germany and Austria, which will thus become for 



29 

all the belligerent powers the code of naval warfare during the 
present conflict. This is the aim of the United States. 

"It cannot be accomplished if the declaration is changed in any 
way as Germany and Austria would not give their consent to a 
change. 

"In the frequent informal and confidential conversations which 
have taken place here and in the admirable frankness with which 
Sir Edward Grey has stated the reasons for the action which Great 
Britain has deemed it necessary to take in regard to the declaration, 
this Government feels that it fully understands and appreciates the 
British position, and is not disposed to place obstacles in the way 
of the accomplishment of the purposes which the British representa- 
tives have so frankly stated. 

"The confidence thus reported in this Government makes it ap- 
preciate more than ever the staunch friendship of Great Britain for 
the United States, which it hopes always to deserve. 

"This Government would not feel warranted in offering any 
suggestion to the British Government as to a course which would 
meet the wishes of this Government and at the same time ac- 
complish the ends which Great Britain seeks, but you might in the 
strictest confidence intimate to Sir Edward Grey the following 
plan, at the same time stating very explicitly that it is your personal 
suggestion and not one for which your Government is responsible. 

"Let the British Government issue an Order in Council accept- 
ing the Declaration of London without change or addition, and 
repealing all previous conflicting orders in council. 

"Let this Order in Council be followed by a proclamation adding 
articles to the lists of absolute and conditional contraband by virtue 
of the authority conferred by Articles 23 and 25 of the declaration. 

"Let the proclamation be followed by another Order in Council, 
of which the United States need not be previously advised, declaring 
that, when one of His Majesty's Principal Secretaries of State is 
convinced that a port or the territory of a neutral country is being 
used as a base for the transit of supplies for an enemy government 
a proclamation shall issue declaring that such port or territory has 
acquired enemy character in so far as trade in contraband is con- 
cerned and that vessels trading therewith shall be thereafter subject 
to the rules of the declaration governing trade to enemy's territory. 
"It is true that the latter Order in Council would be based on a 
new principle. The excuse would be that the Declaration of London 
failing to provide for such an exceptional condition as exists, a bel- 
ligerent has a right to give a reasonable interpretation to the rules 



30 

of the declaration so that they will not leave him helpless to prevent 
an enemy from obtaining supplies for his military forces although 
the belligerent may possess the power and would have the right to 
do so if the port or territory was occupied by the enemy. 

"When the last-mentioned Order in Council is issued, I am con- 
vinced that a full explanation of its nature and necessity would 
meet the liberal consideration by this Government and not be the 
subject of serious objection. 

"I repeat that any suggestion, which you may make to Sir Ed- 
ward Grey, must be done in an entirely personal way and with the 
distinct understanding that this Government is in no way respon- 
sible for what you may say." (Telegram from the Department of 
State to the American Ambassador in Great Britain, October 16, 
1914. United States Foreign Relations, 1914, Supplement, 249. 
United States Naval War College, Internatianal haw Situations, 
1933, 14-16.) 

10. "The question seems wholly different here from what is prob- 
ably seems in Washington. There it is a more or less academic 
discussion. Here it is a matter of life and death for English-speak- 
ing civilization. It is not a happy time to raise controversies that can 
be avoided or postponed. Nothing can be gained and every chance 
for useful cooperation for peace can easily be thrown a way and is 
now in jeopardy. In jeopardy also are our friendly relations with 
Great Britain in the sorest time of need in her history. I know that 
this is the correct, larger view." (Telegram from the American 
Ambassador in Great Britain to the Department of State. United 
States Foreign Relations, 1914, Supplement, 248. United States 
Naval War College, International haw Situations, 1933, 16.) 

"Beg that you will not regard the position of this Government 
as merely academic. Contact with opinion on this side the water 
would materially alter your view. Lansing has pointed out to you 
in personal confidential despatch of this date how completely all 
the British Government seeks can be accomplished without the least 
friction with this Government and without touching opinion on this 
side the water on an exceedingly tender spot. I must urge you to 
realize this aspect of the matter and to use your utmost persuasive 
efforts to effect an understanding, which we earnestly desire, by 
the method we have gone out of our way to suggest, which will put 
the whole case in unimpeachable form. 

"This is private end for your guidance." 

"Woodrow Wilson" 



31 

(President of the United States to the American Ambassador in 
Great Britain. United States Foreign Relations, 1914, Supplement, 
252. United States Naval War College, International Law Situa- 
tions, 1933, 16.) 

12. "There is no Hague convention which deals with absolute or 
conditional contraband, and, as the Declaration of London is not in 
force, the rules of international law only apply. As to the articles 
to be regarded as contraband, there is no general agreement between 
nations. It is the practice for a country, either in time of peace 
or after the outbreak of war, to declare the articles which it will 
consider as absolute or conditional contraband. It is true that a 
neutral government is seriously affected by this declaration, as 
the rights of its subjects of citizens may be impaired. But the 
rights and interests of belligerents and neutrals are opposed in 
respect to contraband articles and trade and there is no tribunal 
to which questions of difference may be readily submitted. 

"The record of the United States in the past is not free from 
criticism. When neutral, this Government has stood for a restricted 
list of absolute and conditional contraband. As a belligerent, 
we have contended for a liberal list, according to our conception 
of the necessities of the case. (Secretary of State Bryan to Senator 
Stone, January 20, 1915. United States Foreign Relations, 1914, 
Supplement, ix. ) 

13. "Petrol and other petroleum products have been proclaimed 
by Great Britain as contraband of war. In view of the absolute 
necessity of such products to the use of submarines, aeroplanes, 
and motors, the United States Government has not yet reached the 
conclusion that they are improperly included in a list of contra- 
band. Military operations to-day are largely a question of motive 
power through mechanical devices. It is therefore difficult to argue 
successfully against the inclusion of petroleum among the articles 
of contraband . . . ." 

"Great Britain and France have placed rubber on the absolute 
contraband list and leather on the conditional contraband list. Rub- 
ber is extensively used in the manufacture and operation of motors 
and, like petrol, is regarded by some authorities as essential to mo- 
tive power to-day. Leather is even more widely used in cavalry and 
infantry equipment. It is understood that both rubber and leather, 
together with wool, have been embargoed by most of the belligerent 
countries. It will be recalled that the United States has in the 
past exercised the right of embargo upon exports of any commodity 
which might aid the enemy's cause." (Secretary of State Bryan to 



32 

Senator Stone, Jan. 20, 1915. United States Foreign Relations , 
1914, Supplement, x.) 

14. "I note your excellency's statement that in taking the measure 
of placing resinous products and turpentine on the list of contraband, 

His Brittannic Majesty's Government followed the usage of all 
maritime nations, and notably that of the United States, when at 
war, who have invariably claimed and exercised the right of making 
additions from time to time to their lists of contraband — a right 
explicitly conferred in the Declaration of London. 

"I do not for a moment suppose that by this statement your 
excellency intends to advance the principle that belligerents have 
the right to add at their pleasure to the list of contraband without 
reference to the character of the article involved, for in that case 
I would be compelled to question the principle." (Secretary of State 
Bryan to the British Ambassador to the United States, Spring- 
Rice, January 13, 1915. United States Foreign Relations, 1915, 
Supplement, 306—7.) 

15. The spirit of retaliation between the belligerents which made 
all neutral protests futile is illustrated by the German War Zone 
proclamation of February 4, 1915, which stated that the waters 
surrounding Great Britain and Ireland were to be considered as 
"within the seat of war and that all enemy merchant vessels found 
in those waters after the eighteenth instant will be destroyed al- 
though it may not always be possible to save crews and passengers. 

"Neutral vessels expose themselves to danger within this zone 
of war since in view of the misuse of the neutral flag ordered by 
the British Government on January thirty-first and of the con- 
tingencies of maritime warfare it cannot always be avoided that 
neutral vessels suffer from attacks intended to strike enemy ships." 
{United States Foreign Relations, 1915, Supplement, 94. United 
States Naval War College, International Law Situations, 1933, 17.) 

16. "Unofficial critics praise the courtesy and admit the propriety 
of our communications, but they regard them as remote and im- 
practicable. They point out that we have not carried our points: 
namely, that copper should not be contraband, that ships should be 
searched at sea, that to-order cargoes should be valid, that our 
export trade had fallen off because of the war. They point out these 
in good-natured criticism as evidence of the American love of pro- 
test for political effect at home. While the official reception of our 
communications is dignified, the unofficial and general attitude to 
them is a smile at our love of letter writing as at Fourth of July 
orations. They quietly laugh at our effort to regulate sea warfare 



33 

under new conditions by what they regard as lawyers' disquisitions 
out of textbooks. They [receive] them with courtesy, pay no fur- 
ther attention to them, proceed to settle our shipping disputes with 
an effort at generosity and quadruple their orders from us of war 
materials. They care nothing for our definitions or general protests 
but are willing to do us every practical favor and will under no 
conditions either take our advice or offend us. They regard our 
writings as addressed either to complaining shippers or to politicians 
at home. 

"For these reasons complaints about concrete cases as they arise 
are more effective than general communications about rules of 
sea warfare, which must be revised by the submarine, the aeroplane, 
the mine and our own precedents." (Telegrams from the American 
ambassador in Great Britain to the Secretary of State, May 21, 
1915. United States Foreign Relations, 1915, Supplement, 147. 
United States Naval War College, International Law Situations , 
1933, 17-18.) 

17. "The most difficult questions in connection with conditional 
contraband arise with reference to the shipment of foodstuffs. No 
country has maintained more stoutly than Great Britain in modern 
times the principle that a belligerent should abstain from inter- 
ference with the foodstuffs intended for the civil population. The 
circumstances of the present struggle are causing His Majesty's 
Government some anxiety as to whether the existing rules with 
regard to conditional contraband, framed as they were with the 
object of protecting so far as possible the supplies which were in- 
tended for the civil population are effective for the purpose, or 
suitable to the conditions present. The principle which I have 
indicated above is one which His Majesty's Government have 
constantly had to uphold against the opposition of contintental 
powers. In the absence of some certainty that the rule would be 
respected by both parties to this conflict, we feel great doubt 
whether it should be regarded as an established principle of inter- 
national law. . . ." 

"The reason for drawing a distinction between foodstuffs in- 
tended for the civil population and those for the armed forces or 
enemy Government disappears when the distinction between the 
civil population and the armed forces itself disappears. 

"In any country in which there exists such tremendous organiza- 
tion for war as now obtains in Germany there is no clear diversion 
[division] between those whom the Government is responsible for 
feeding and those whom it is not. Experience shows that the power 



34 

to requisition will be used to the fullest extent in order to make 
sure that the wants of the military are supplied, and however much 
goods may be imported for civil use it is by the military that they 
will be consumed if military exigencies require it, especially now 
that the German Government have taken control of all the food- 
stuffs in the country. (Note from the British Foreign Secretary to 
the American Ambassador, Feb. 12, 1915. United States Foreign 
Relations, 1915, Supplement, 332. United States Naval War Col- 
lege, International Law Situations, 1933, 18—19.) 

"In Department's consideration of destination of conditional 
contraband, it is necessary to ascertain to what extent the military 
authorities have superseded civil authorities in the Government of 
Germany so far as control over imports are concerned, and to what 
extent the Government controls the use of articles on contraband 
list of Great Britain and her allies. Are private consignees free to 
import such articles without interference by authorities?" (An in- 
quiry by the United States Department of State in regard to the 
control of German resources and imports by the German Govern- 
ment, October 28, 1915, United States Foreign Relations, 1915, 
Supplement, 603. United States Naval War College, International 
Law Situations, 1933, 19.) 

19. "Following information communicated verbally by [Ger- 
man] Foreign Office ; written answer promised : 

"(1) Owing to proclamation issued at outbreak of war, mili- 
tary authorities theoretically have power to supersede civil authori- 
ties, but, practically, power has been exercised in only few instances 
and not at all in connection with customs authorities. 

"(2) In so far as control of use of imported goods is concerned, 
Government regards enemy's list of conditional contraband as of 
no importance. 

"(3) Receipt and distribution of certain imported food and 
fodder products may take place only through central organization 
which distributes to civil parties only, but military authorities have 
power to requisition against payment anything needed by army 
or navy. 

" (4) Chancellor has power to grant exemption from control and 
distribution and military authorities have power to guarantee in 
advance freedom from requisition of designated imported consign- 
ments in whole or part." (Reply to the United States Department 
of State by the American Embassy in Berlin, December 4, 1915. 
United States Foreign Relations, 1915, Supplement, 622. United 



35 

States Naval War College, International Law Situations, 1933, 
19-20.) 

20. ". . . The circumstances of the present war are so peculiar 
that His Majesty's Government consider that for practical pur- 
poses the distinction between the two classes of contraband has 
ceased to have any value. So large a proportion of the inhabitants 
of the enemy country are taking part, directly or indirectly, in the 
war that no real distinction can now be drawn between the armed 
forces and the civilian population. Similarly, the enemy Govern- 
ment has taken control, by a series of decrees and orders, of prac- 
tically all the articles in the list of conditional contraband, so that 
they are now available for Government use. So long as these 
exceptional conditions continue our belligerent rights with respect 
to the two kinds of contraband are the same, and our treatment of 
them must be identical." (Explanation of the British Government 
after notification of a revised contraband list. Vice Consul in Lon- 
don to Secretary of State Lansing, April 20, 1916 (enclosure). 
United States Foreign Relations, 1916, Supplement, 385.) 

21. "Sir: With reference to the announcement made by the 
British Foreign Office, under date of April 13, 1916, of the inten- 
tion of the British Government to treat alike absolute and condi- 
tional contraband, you are instructed to communicate to the Foreign 
Office a formal reservation, in regard to this announcement, in the 
sense that, in view of the established practice of a number of 
maritime nations, including Great Britain and the United States, 
of distinguishing between absolute and conditional contraband, the 
Government of the United States is impelled to notify the British 
Government of the reservation of all rights of the United States 
or its citizens in respect of any American interests which may be 
adversely affected by the abolition of the distinction between these 
two classes of contraband, or by the illegal extension of the contra- 
band lists during the present war by Great Britain and her allies." 
(Instructions from Secretary of State Lansing to Ambassador Page 
in Great Britain, Nov. 11, 1916. United States Foreign Rela- 
tions, 1916, Supplement, 483. United States NavalWar College, 
International Law Situations, 1933, 20.) 

22. "In modern times the two chief points of controversy have 
related to the carriage of contraband and the trading through block- 
aded ports." ". . . I only wish to note and extract the principle upon 
which they are based. Broadly, the principle is that the maritime 
commerce of neutrals is subject to restriction by the acts of States 
at war, if that commerce tends to assist an enemy either directly in 



36 

his warlike operations, or indirectly in the carrying on of his own 
trade upon which his power of continuing the war may largely, or 
even entirely, depend. The object, and the enemy's commerce. The 
result, and the inevitable result, to neutrals is interference with 
their trade." 

"In 'the application of the principle, the boundary of the law of 
nations has been extended from time to time to adapt itself to new 
and ever-changing conditions. This law must from its nature have 
room for expansion. It cannot and never could be squeezed into 
a mould of a particular size or shape. It never had or could have 
the quality of immutability attributed to the laws of the Medes 
and Persians. It could not be confined within artificial limits like 
an Act of Parliament. It has the essence and qualities of a living 
organism like the common law of this realm." 

"In the two branches already mentioned, namely, contraband and 
blockade, this natural development is clearly illustrated. Contra- 
band goods were at one time comprised within a very limited 
catalogue. At the present day, the list is extensively enlarged. The 
result to neutrals has been that their trade in such goods has to 
run greater and increasing risks and penalties. Moreover, in recent 
times not only have the contraband goods themselves been subject 
to confiscation, but the neutral vessels which carry them have also 
been rendered confiscable in many cases. It has become established 
law, too, that other goods on the same vessel belonging to the 
same neutral character or enemy destination. It may be added, also, 
that the application of the doctrine of continuous voyage to contra- 
band trade has greatly encroached upon and fettered the trade 
of neutrals in time of war. This doctrine was originated in con- 
nection with the so-called 'Rule of 1756,' but since its extension 
to trade in contraband goods by the Courts of North American 
States at the time of the Civil War it has become established as 
part of the law of nations." (Sir Samuel Evans, February 16, 1917, 
supporting the Retaliatory Order in Council in The Leonora and 
Other Vessels (1918), a British case. VII Lloyds Prize Cases, 
262, 300. 

23. The United States Naval Instructions of 1917 
retained, in name if not in reality, the distinction 
between absolute and conditional contraband even 
though it was out of step with the practice of the time. 

23. "In the absence of notice of change which the Government 
of the United States may make at the outbreak of or during war, the 



37 

following classification and enumeration of contraband will govern 
commanders of ships of war." 

24. "The articles and materials mentioned in the following para- 
graphs (a), (b), (c),arid (d), actually destined to territory belong- 
ing to or occupied by the enemy or to armed forces of the enemy, 
and the articles and materials mentioned in the following para- 
graph (e) actually destined for the use of the enemy Government 
or its armed forces, are, unless exempted by treaty, regarded as 
contraband." 

"(a) All kinds of arms, guns, ammunition, explosives, and 
machines for their manufacture or repair; component parts thereof ; 
materials or ingredients used in their manufacture ; articles neces- 
sary or convenient for their use." 

"(b) All contrivances for or means of transportation on land, 
in the water or air, and machines used in their manufacture or 
repair; component parts thereof; materials or ingredients used in 
their manufacture ; instruments, articles or animals necessary or 
convenient for their use." 

"(c) All means of communication, tools, implements, instru- 
ments, equipment, maps, pictures, papers and other articles, ma- 
chines, or documents necessary or convenient for carrying on hostile 
operations." 

"(d) Coin, bullion, currency, evidences of debt; also metal, 
materials, dies, plates, machinery or other articles necessary or 
convenient for their manufacture." 

"(e) All kinds of fuel, food, foodstuffs, feed, forage, and cloth- 
ing and articles and materials used in their manufacture." 

25. "Articles and materials even though enumerated in 
paragraph 24, if exempted, by special treaty provisions, are not 
regarded as contraband." 

59. "The neutral or enemy character of merchandise found on 
board an enemy private vessel is determined by the neutral or 
enemy commercial domicile of the owner, whether the owner be an 
individual, a firm, or a corporation. In the absence of proof of 
the neutral character of goods found on board an enemy vessel, 
they are presumed to be enemy goods." 

67. "The neutral flag covers enemy goods with the exception 
of contraband of war." (Declaration of Paris, 1856, art. 2.) 

68. "Neutral goods, with the exception of contraband of war, 
are not liable to capture under the enemy's flag." (Declaration of 
Paris, 1856, art. 3.) 

69. "Contraband, in paragraph 24 (a), (b), (c), and (d), is 



38 

liable to capture if its actual destination is the territory belonging 
to or occupied by the enemy, or the armed forces of the enemy. It 
is immaterial whether the carriage of the contraband to such actual 
destination be direct in the original vessel or involve trans-shipment 
or transport overland." 

70. "Contraband, in paragraph 24 (e), is liable to capture if 
ijt is actually destined for the use of the enemy government or its 
armed forces. It is immaterial whether the carriage of contraband 
be direct in the original vessel, or involves trans-shipment or 
transport overland." 

71. "A destination for the use of the enemy government or its 
armed forces referred to in paragraph 70 is presumed to exist if the 
contraband is consigned — 

"(a) To enemy authorities. 

"(b) To a part of equipment or supply of the armed forces of 
the enemy or other place serving as a base for such armed forces. 

"(c) To a contractor or agent in enemy territory who, by com- 
mon knowledge, supplies articles of the kind in question to the 
enemy authorities.'' 

72. "A destination to territory belonging to or occupied by the 
enemy or to the armed forces of the enemy, referred to in paragraph 
69, is presumed to exist if the contraband is consigned 'to order,' 
'to order or assigns,' or with an unnamed consignee, but in any 
case going to territory belonging to or occupied by the enemy, or to 
neutral territory in the vicinity thereof." {Instructions for the 
Navy of the United States Governing Maritime Warfare, June, 
1917,15,24,27-28.) 

24. "When Great Britain inquired in April of 1918 whether the 
United States would concur in the addition to the British list of 
absolute contraband of ( 1 ) willows and osiers; (2) sodium fluoride; 
(3) tin waste; (4) tin and lead and their alloys, salts, compounds, 
and ores; and (5) wire steel and iron, the Navy Department, to 
which the inquiry was referred, replied that the American contra- 
band list already was broad enough to embrace these items, since 
willows and osiers could be used in the manufacture of aircraft 
parts, sodium fluoride was involved in the production of aluminum 
which was used in the manufacture of aircraft and of munitions, 
and the remaining items were all 'employed or capable of being 
employed' in the manufacture of munitions. The British Ambassa- 
dor was informed that these items were included in the list issued 
by the United States in June 1917. When the British Government 
later inquired concerning the addition of citric acid and citrates 



39 

to the list of British absolute contraband, the State Department 
replied that these products were regarded as included within the 
American contraband list of June 1917, since citric acid was the 
active principle of lime juice, which was included in the naval 
ration of some governments, and since citrates were drugs or medi- 
cines useful to the armed forces as well as to the general popula- 
tion." (The Acting Secretary of State Phillips to the Secretary of 
the Navy Daniels, June 4, 1918; Daniel^ to Secretary of State 
Lansing, June 18, 1918; Acting Secretary of State Polk to the 
British Ambassador on Special Mission Reading, July 10 and July 
18, 1918. Comment in Hackworth, G. H., Digest of International 
Law, VII, 23—4. United States Foreign Relations, 1918, Supple- 
ment, vol. II, 917-22.) 

25. "Immediately on the outbreak of war an Examination Serv- 
ice was established at Kirkwall, the Downs, Port Said, and Gibral- 
tar, and the North Sea between the Orkneys and Norway was 
patrolled. Merchant vessels were brought into port and examined 
there, for boarding and search at sea were rendered dangerous by 
submarines, and officers afloat could not be kept adequately in- 
formed of the intricate developments in policy. The Examining 
Officers in the ports acted under direct, and constantly more 
stringent, orders from London as to the vessels and cargoes which 
they were to seize or release. In London the work of translating 
the developing policy into detailed rules and orders were undertaken 
by a Contraband Committee representing the Admiralty and the 
Foreign Office." 

"Naval seizure and search was, however, only one, and in time 
perhaps not the most important instrument, of the blockade. 
Throughout the war the Foreign Office were supplementing it by 
elaborate and very effective agreements with neutral countries, by 
which, in return for permission to import themselves, they under- 
took to control export to Germany. There was throughout com- 
petitive pressure on the contiguous northern neutrals by Germany, 
who could threaten to invade them, and by the Allies who could 
withhold many vital supplies. In this competition the balance 
inclined gradually on the side of the Allies, and the Allied 
agreements became more and more complete. It was nearly a year, 
however, before the blockade became really effective. In the early 
months supplies of all kinds, except finished munitions, flowed 
abundantly into Germany. Merchants had learnt how to send 
'conditional contraband' through the contiguous neutrals. The 
diplomatic position, both with these neutrals and America, was 



40 

making more drastic action difficult; but it was evident that with- 
out it the blockade might almost as well be abandoned." 

"Germany's declaration, however, that after February 1915 she 
would instruct her submarines to attack all merchant vessels in 
British waters, created an outburst of indignation in neutral coun- 
tries, which Great Britain at once used to make the blockade 
comprehensive. In the Reprisals Order of March 11, 1915, she 
announced her intention to stop all goods of enemy origin or 
destination, and proceeded henceforth to stop supplies intended for 
Germany, without regard to the destination of the earlier contra- 
band rules or to the fact that the supplies might be consigned 
trough a neutral port. Even this, however, was not enough. It way 
useless to prohibit every cargo of food destined for Germany, 
whether sent through contiguous neutral countries or not, if these 
neutral countries could themselves import freely for their own 
uses, and with the sufficiency so obtained, export their own produce 
to Germany by routes which the Allies could not control. This 
was the reason for the 'rationing' policy, which was begun in 1915, 
and subsequently became the central feature in the whole blockade 
system. Detailed statistics were compiled as to the pre-war imports 
and consumption of all the neutral countries which had uncon- 
trolled access to Germany; and only enough war imports were 
allowed to give a bare sufficiency for internal consumption. The 
neutral countries were therefore compelled to adopt internal ration- 
ing measures, so that the system of official control extended over 
almost the whole world — neutral and belligerent alike." (Salter, 
J. A., Allied Shipping Control, (Oxford, 1921), 99-100. Sir 
Arthur Slater was Secretary to the Allied Maritime Transport 
Council and Chairman of the Allied Maritime Transport Execu- 
tive during World War I.) 

26. "As was shown in the World War, it is difficult and at 
times impossible to distinguish between absolute and conditional 
contraband. By nature, some goods may equally serve the combatant 
and noncombatant population. If a consignment of goods is unques- 
tionably for the civil population in a given area, these goods may 
in fact make it possible to send to the forces other goods which 
would have been essential in that area without the consignment and 
it has been held that it thus makes little difference which goods go 
to the forces as the result is the same. The means of transportation 
and methods of warfare have so far changed that nearly all parts 
of a state may serve its forces and nearly all goods may be of use for 
the forces. Indeed in the World War German courts seemed to 



41 

regard all ports of England as ports which could be considered 
bases and the British seemed to regard practically all goods as of 
military use. 

"The distinctions between absolute and conditional contraband 
came to have little significance and to be little applied in practice. 
During the World War most states participating in the conflict 
formally abolished or tacitly disregard the distinction." 

"Contraband consists of articles which a neutral may not furnish 
to one belligerent without risk of capture by the other belligerent. 
The essential items for consideration would be the nature of the 
article and the destination. 

"Goods of the nature of contraband of which capture might be 
justified would be such as would aid the belligerent in the conduct 
of the war. In early days when the conduct of the war depended 
almost wholly upon supplying the enrolled armed forces with the 
simple implements of war, lists were comparatively easy to draw 
up and did not vary greatly from year to year. Pitch-balls and 
javelins might be included in a contraband list, as in the treaties 
with Sweden, 1783, and some other early treaties of the United 
States, but cotton and oil and many other articles were definitely 
excluded from the list, and it was provided they 'shall not by any 
pretended interpretation be comprehended among prohibited or con- 
traband goods' unless bound to places 'besieged, blocked, or invested' 
so as to be 'nearly surrounded by one of the belligerent powers.' " 

"The intention of such agreements was to confine the list of con- 
traband to such articles as were actually for war use. Manifestly 
therefore for all contraband articles the destination was a matter of 
equal importance with the nature of the article itself, for if the 
article whatever its nature, was not destined for war use it would 
not be liable as contraband. Speaking of articles of ordinary use 
such as provisions, Mr. Justice Story in the case of the Commercerij 
1816, said, "if destined for the army or navy of the enemy, or for his 
ports of naval or military equipment, they are deemed contraband.' 
(1 Wheat. 387.)" 

"The attitude of leading states has varied in regard to what ar- 
ticles and when articles might be treated as conditional contraband. 
Even during the World War there were many conflicting opinions." 

"If a state mobilizes its whole population and all its resources 
for war, evidently it will be difficult if not impossible to distinguish 
among consignments destined for that state, and anything bound for 
the state, unless exempted on humanitarian grounds, may be liable 
to capture as contraband. The grounds of humanity would exempt 



42 

articles whose sole use would be for medicinal and surgical purposes 
and articles necessary for Red Cross operations." 

"The changing use and impossibility of determining what may 
be of use in war from day to day and the possibility of mobilization 
of population would therefore justify the declaration that the dis- 
tinction between absolute and conditional contraband is abolished." 

"All goods other than those solely for humanitarian and Red 
Cross use might be declared contraband." (United States Naval 
War College, International Law Situations, 1933, 25—8.) 
Continuous Voyage and Contraband. 

The problem of determining destination in itself, 
of goods increased in importance as the distinction 
between absolute and conditional contraband di- 
minished and the contraband list grew longer, for 
in total warfare goods consigned to a neutral country 
but with an enemy country as the ultimate or prob- 
ably ultimate destination, could not be tolerated by 
any belligerent. As a result of these trends, the doc- 
trine of continuous voyage, previously applicable to 
only a share of the goods, now became applicable to 
most goods, all contraband. 

1. "(5) Notwithstanding the provisions of Article 35 of the said 
declaration [of London], conditional contraband, if shown to have 
the destination referred to in Article 33, is liable to capture, to 
whatever port the vessel is bound and at whatever port the cargo 
is to be discharged." (British Order in Council, Aug. 20, 1914. 
United States Foreign Relations, 1914, Supplement 220). 

2. For French and Russian decrees corresponding to the British 
Order in Council, see United States Foreign Relations, 1914, Sup- 
plement, 222, or the American Journal of International Law, Vol. 
9, Special Supplement, (July 1915) 31-3. 

3. "... it is manifest that this article nullifies the words 'and 
when it is not to be discharged in an intervening neutral port' 
which appear in Article 35 of the Declaration of London. This then 
is a reversion to the doctrine of continuous voyage in the matter 
of conditional contraband, which was abandoned by the London 
conference according to the official report of the drafting com- 
mittee." 

"This Government, therefore, feels compelled to state that 
Articles 3 and 5 of the Order in Council are inadmissible in them- 



43 

selves, and that the purpose for which they have apparently been 
devised, as explained by the memorandum of the Foreign Office, 
namely, to intercept neutral commerce on its way to a neutral na- 
tion, is, in the opinion of this Government, equally inadmissible." 
(Acting Secretary of State Lansing to Ambassador Page, Sept. 26, 
1914. United States Foreign Relations, 1914, Supplement, 229- 
230). 

4. "1. During the present hostilities the provisions of the con- 
vention known as the Declaration of London shall, subject to the 
exclusion of the lists of contraband and non-contraband, and to the 
modifications hereinafter set out, be adopted and put in force by His 
Majesty's Government. 

"The modifications are as follows: 

"(i) A neutral vessel, with papers indicating a neutral des- 
tination, which, notwithstanding the destination shown 
on the papers, proceeds to an enemy port, shall be liable 
to capture and condemnation if she is encountered before 
the end of her next voyage." 
"(iii) Notwithstanding the provisions of Article 35 of the 
said declaration, conditional contraband shall be liable 
to capture on board a vessel bound for a neutral port 
if the goods are consigned 'to order,' or if the ship's 
papers do not show who is the consignee of the goods, 
or if they show a consignee of the goods in territory 
belonging to or occupied by the enemy." 
"(iv)In the cases covered by the preceding paragraph (iii) 
it shall lie upon the owners of the goods to prove that 
their destination was innocent." 
"2. Where it is shown to the satisfaction of one of His Majesty's 
Principal Secretaries of State that the enemy Government is draw- 
ing supplies for its armed forces from or through a neutral country, 
he may direct that in respect of ships bound for a port in that coun- 
try, Article 35 of the said Declaration shall not apply. Such direc- 
tion shall be notified in the London Gazette and shall operate until 
the same is withdrawn. So long as such direction is in force, a vessel 
which is carrying conditional contraband to a port in that country 
shall not be immune from capture." (British Order in Council, 
Oct. 29, 1914. (Enclosure in a dispatch from Ambassador Page 
to Secretary of State Bryan, Nov. 3, 1914. United States Foreign 
Relations, 1914, Supplement, 262—3.) 

5. For French and Russian regulations similar to 



44 

the British decree of October 29, 1914, see the Ameri- 
can Journal of International Law, Vol. 9, Special 
Supplement, 24, 26, 31, 35-36. 

6. For a similar German ordinance of April 18, 
1915 justified as "in retaliation of the regulations 
adopted by England and her allies, deviating from the 
London declaration," see the American Journal of 
International Law, Vol. 9, Special Supplement, 45-6. 

"The United States has made earnest representations to Great 
Britain in regard to the seizure and detention by the British auth- 
orities of all American ships or cargoes bona fide destined to neutral 
ports on the ground that such seizures and detentions were contrary 
to the existing rules of international law. It will be recalled, however, 
that American courts have established various rules bearing on the 
matters. The rule of 'continuous voyage' has been not only asserted 
by American tribunals but extended by them. They have exercised 
the right to determine from the circumstances whether the osten- 
sible was the real destination. They have held that the shipment of 
articles of contraband to a neutral port 'to order,' from which, as 
a matter of fact, caroges had been transhipped to the enemy, is 
corroborative evidence that the cargo is really destined to the enemy 
instead of to the neutral port of delivery. It is thus seen that some 
of the doctrines which appear to bear harshly upon neutrals at the 
present time are analogous to or outgrowths from policies adopted 
by the United States when it was a belligerent. The Government 
therefore cannot consistently protest against the application of rules 
which it has followed in the past, unless they have not been prac- 
ticed as heretofore." (Secretary of State Bryan to Senator Stone, 
January 20, 1915. United States Foreign Relations, 1914, Supple- 
ment, ix.) 

8. "No one in these days will dispute the general proposition 
that a belligerent is entitled to capture contraband goods on their 
way to the enemy; that right has now become consecrated by long 
usage and general acquiescence. Though the right is ancient, the 
means of exercising it alter and develop with the changes in the 
methods and machinery of commerce. A century ago the difficulties 
of land transport rendered it impracticable for the belligerent to 
obtain supplies of sea-borne goods through a neighboring neutral 
country. Consequently the belligerent actions of his opponents nei- 
ther required nor justified any interference with shipments on their 



45 



way to a neutral port. This principle was recognized and acted 
on in the decisions in which Lord Stowell laid down the lines on 
which captures of such goods should be dealt with. 

"The advent of steam power has rendered it as easy for a belliger- 
ent to supply himself through the ports of a neutral contiguous 
country as through his own, and has therefore rendered it impos- 
sible for his opponent to refrain from interfering with commerce 
intended for the enemy merely because it is on its way to a neutral 
port. 

"No better instance of the necessity of countering new devices 
for despatching contraband goods to an enemy by new methods of 
applying the fundamental principle of the right to capture contra- 
band can be given than the steps which the Government of the 
United State's found it necessary to take during the American 
Civil War. It was at that time that the doctrine of continuous voy- 
age was first applied to the capture of contraband, that is to say, 
it was then for the first time that the belligerent found himself 
obliged to capture contraband goods on their way to the enemy, even 
though at the time of capture they were en route for a neutral port 
from which they were intended subsequently to continue their 
journey. The policy then followed by the Government of the United 
States was not inconsistent with general principles already sanction- 
ed by international law, and met with no protest from His Ma- 
jesty's Government, though it was upon British cargoes and upon 
British ships that the losses and the inconvenience due to this new 
development of the application of the old rule of international law 
principally fell. The criticisms which have been directed against 
the steps then taken by the United States came, and come, from 
those who saw in the methods employed in Napoleonic times for the 
prevention of contraband a limitation upon the right itself, and 
failed to see that in Napoleonic times goods on their way to a 
neutral port were immune from capture, not because the immediate 
destination conferred a privilege, but because capture under such 
circumstances were unnecessary." 

"The most difficult questions in connection with conditional 
contraband arise with reference to the shipment of foodstuffs. No 
country has maintained more stoutly than Great Britain in modern 
times the principle that a belligerent should abstain from inter- 
ference with the foodstuffs intended for the civil population. The 
circumstances of the present struggle are causing His Majesty's 
Government some anxiety as to whether the existing rules with 
regard to conditional contraband, named as they were with the 



46 

object of protecting so far as possible the supplies which were 
intended for the civil population are effective for the purpose, or 
suitable to the conditions present. The principle which I have in- 
dicated above is one which His Majesty's Government have 
constantly had to uphold against the opposition of continental 
powers. In the absence of some certainty that the rule would be 
respected by both parties to this conflict, we feel great doubt 
whether it should be regarded as an established principle of inter- 
national law." (British Foreign Office note of February 10, 1915. 
United States Foreign Relations, 1915, Supple?nent, 324, 327—8, 
332.) 

9. "In October and November 1914 the Kim, the Alfred Nobel, 
the Bjornsterjne Bjornson, and the Fridland, all Norwegian ships 
except the Fridland, which was Swedish, sailed from New York for 
Copenhagen. In their cargoes were foodstuffs, rubber, and hides." 

"In these cases inference as to ultimate destination to Germany 
of goods consigned to Copenhagen was based in the first instance 
upon the rapid increase in the relative amount of such goods shipped 
to Copenhagen in corresponding months of 1913 and 1914. There 
was also an argument on the ground of evident deception and 
misinformation." (United States Naval War College, Interna- 
tional Law Situations, 1933, 20—21.) 

10. Sir Samuel Evans in holding the cargoes of the Kim and the 
three other ships liable to condemnation as contraband declared: 

"Two important doctrines familiar to international law come 
prominently forward for consideration: the one is embodied in the 
rule as to 'continuous voyage,' or continuous 'transportation' ; the 
other relates to the ultimate hostile destination of conditional and 
absolute contraband respectively. 

"The doctrine of 'continuous voyage' was first applied by the 
English Prize Courts to unlawful trading. There is no reported 
case in our Courts where the doctrine is applied in terms to the 
carriage of contraband ; but it was so applied and extended by the 
United States Courts against this country in the time of the Ameri- 
can Civil War; and its application was acceded to by the British 
Government of the day; and was, moreover, acted upon by the 
International Commission which sat under the Treaty between 
this country and America, made at Washington on May 8, 1871, 
when the commission, composed of an Italian, an American, and 
a British delegate, unanimously disallowed the claims in The Peter- 
hoff , which was the leading case upon the subject of continuous 
transportation in relation to contraband goods. . . ." 



47 

"I am not going through the history of it, but the doctrine was 
asserted by Lord Salisbury at the time of the South African war 
with reference to German vessels carrying goods to Delagoa Bay, 
and as he was dealing with Germany, he fortified himself by refer- 
ring to the view of Bluntschli as the true view as follows: 'If the 
ships or goods are sent to the destination of a neutral port only 
the better to come to the aid of the enemy there will be contraband 
of war, and confiscation will be justified.' " 

"It is essential to appreciate that the foundation of the law of 
contraband, and the reason for the doctrine of continuous voyage 
which has been grafted into it, is the right of a belligerent to 
prevent certain goods from reaching the country of the enemy for 
his military use." 

"A compromise was attempted by the London Conference in 
the unratified Declaration of London. The doctrine of continuous 
voyage or continuous transportation was conceded to the full by 
the conference in the case of absolute contraband, and it was 
expressly declared that 'it is immaterial whether the carriage or 
the goods is direct, or entails transshipment, or a subsequent trans- 
port by land. 

"As to conditional contraband, the attempted compromise was 
that the doctrine was excluded in the case of conditional contra- 
band except where the enemy country had no seaboard. As is usual 
in compromises, there seems to be an absence of logical reason for 
the exclusion. If it is right that a belligerent should be permitted 
to capture absolute contraband proceeding by various voyages or 
transport with an ultimate destination for the enemy territory, why 
should he not be allowed to capture goods which, though not ab- 
solutely contraband, become contraband by reason of a further 
destination to the enemy Government or its armed forces? And 
with the facilities of transportation by sea and by land which now 
exist the right of a belligerent to capture conditional contraband 
would be of a very shadowy value if a mere consignment to a 
neutral port were sufficient to protect the goods. It appears also 
to be obvious that in these days of easy transit, if the doctrine of 
continuous voyage or continuous transportation is to hold at all, it 
must cover not only voyages from port to port at sea, but also 
transport by land until the real, as distinguished from the merely 
ostensible, destination of the goods is reached." 

"I have no hesitation in pronouncing that, in my view, the doc- 
trine of continuous voyage, or transportation, both in relation to 
carriage by sea and to carriage over land, had become part of the 



48 

law of nations at the commencement of the present war, in accord- 
ance with the principles of recognized legal decisions, and with the 
view of the great body of modern jurists, and also with the practice 
of nations in recent maritime warfare. 

"The result is that the Court is not restricted in its vision to 
the primary consignments of the goods in these cases to the neutral 
port of Copenhagen; but is entitled, and bound, to take a more 
extended outlook in order to ascertain whether this neutral destina- 
tion was merely ostensible and, if so, what the real ultimate 
destination was." ( The Kim; The Alfred Nobel; The Bjornsterjne 
Bjornson; The Fridland (1915). Ill Lloyd's Prize Cases 167, 
355-359.) 

11. In deciding that the goods were ultimately 
destined for enemy territory, Sir Samuel Evans, 
stated : 

"As to the real destination of a cargo, one of the chief tests is 
whether it was consigned to the neutral port to be there delivered 
for the purpose of being imported into the common stock of the 
country." 

"... I have no hesitation in stating my conclusion that the 
cargoes (other than the small portions acquired by persons in 
Scandinavia whose claims are allowed) were not destined for con- 
sumption or use in Denmark or intended to be incorporated into 
the general stock of that country by sale or otherwise ; that Copen- 
hagen was not the real bona fide place of delivery; but that the 
cargoes were on their way at the time of capture to German terri- 
tory as their actual and real destination." {The Kim; The Alfred 
Nobel; The Bjornsterjne Bjornson; The Fridland. Ill Lloyd's 
Prize Cases, 167, 359, 362.) 

12. "1. The provisions of the Declaration of London, Order in 
Council No. 2, 1914, shall not be deemed to limit or to have 
limited in any way the right of His Majesty, in accordance with 
the law of nations, to capture goods upon the ground that they 
are conditional contraband, nor to affect or to have affected the 
liability of conditional contraband to capture, whether the carriage 
of the goods to their destination be direct or entail transshipment 
or a subsequent transport by land. 

"2. The provisions of Article 1 (ii) and (iii) of the said Order 
in Council shall apply to absolute contraband as well as to condi- 
tional contraband. 

"3. The destinations referred to in Article 30 and in Article 33 



49 

of the said Declaration shall (in addition to any presumptions 
laid down in the said Order in Council) be presumed to exist, if 
the goods are consigned to or for a person, who, during the present 
hostilities, has forwarded imported contraband goods to territory 
belonging to or occupied by the enemy. 

"4. In the cases covered by Articles 2 and 3 of this Order, it 
shall lieu upon the owner of the goods to prove that their destina- 
tion was innocent." (British "Declaration of London Order in 
Council, 1916," March 30, 1916. United States Foreign Relations, 
1916, Supplement, 361.) 

13. In regard to the meaning of Article 1 of the 
above Order in Council, see The Kronprinsessan 
Margareta, (1921), VIII Lloyd's Prize Cases, 241, 
267-9. Also Briggs, H. W., Doctrine of Continuous 
Voyage, (1926), 111-112. 

14. "(a) The hostile destination required for the condemna- 
tion of contraband articles shall be presumed to exist, until the 
contrary is shown, if the goods are consigned to or for an enemy 
authority, or an agent of the enemy State, or to or for a person in a 
territory belonging to or occupied by the enemy, or to or for a 
person who, during the present hostilities, has forwarded contra- 
band goods to an enemy authority, or an agent of the enemy State, 
or to or for a person in territory belonging to or occupied by the 
enemy, or if the goods are consigned 'to order,' or if the ship's 
papers do not show who is the real consignee of the goods. 

"(b) The principle of continuous voyage or ultimate destina- 
tion shall be applicable both in cases of contraband and of blockade." 
(British order in Council of July 7, 1916. United States Foreign 
Relations, 1916, Supplement, 413-4.) 

14. The Department of State through its Ambas- 
sador to Great Britain protested against this Order 
in Council, stating that the rules asserted in this 
Order in Council were in conflict with the law and 
practice of nations in several instances and that the 
United States reserved its rights. (Secretary Lansing 
to the Charge d'Affaires in Great Britain, Laughlin, 
Sept. 18, 1916. United States Foreign Relations, 1916, 
Supplement, 446-7.) 

15. In the case of The Balto, the British had seized 



50 

leather on board this Norwegian vessel bound from 
the United States to Sweden as contraband of war. 
The owners claimed that the leather was destined for 
use only in Sweden. The Crown "sought discovery 
with respect to the books of the consignee-claimant 
concerning its transactions in boots as well as in 
leather.'' 

Sir Samuel Evans granted discovery and said : 

"The objection for the claimant is that the leather cannot in any 
circumstances be seized as prize, if it was intended to be manu- 
factured into boots in Sweden, although the boots were to be sent 
to the forces of the enemy." 

"It is the claimant's contention, that contraband goods cannot 
be seized on a continuous voyage, unless they were on their way 
to a final enemy destination in the same condition as they were 
at the time of seizure sound? As at present advised, I think it is 
quite unsound." 

"One of the tests applied [in the Kim case] was whether the 
goods imported were intended to become part of the common 
stock of the neutral country into which they were first brought. 
In my view the notion that leather, imported to a neutral country 
for the express purpose of being at once turned into boots for the 
enemy forces, becomes incorporated in the common stock of the 
neutral country, is illusory. Instances can be given and multiplied 
which appear to reduce to an absurdity the argument that if work 
is done in the neutral country upon goods which are intended ulti- 
mately for the enemy, that circumstance of necessity puts an end 
to their contraband character, and prevents their being confiscable 
according to the doctrine of continuous voyage." 

"Suppose coffee beans and cocoa beans were imported into a 
neutral country with the object of their being converted into coffee 
or cocoa to be sent on to the enemy, would the fact that the 
coffee beans were ground into coffee, or the cocoa beans were 
ground and mixed with sugar to make cocoa in the neutral country, 
be enough to render those goods immune from capture, if they 
would be capturable as coffee or cocoa foodstuffs when afloat? 
... If a field gun was imported, would it be protected from seizure 
because it would, in fact, be mounted upon its appropriate carriage 
before being exported from a neutral country to the enemy's front? 

"The Court could not give affirmative answers to such questions 



51 

as these unless ft cut itself adrift from the safe anchor of common 
sense." {The Balto, ( 1907). VI Lloyd's Prize Cases, 141, 147-9.) 
16. "69. Contraband, in paragraph 24 (a), (b), (c), and (d), 
is liable to capture if its actual destination is the territory belonging 
to or occupied by the enemy, or the armed forces of the enemy. It 
is immaterial whether the carriage of the contraband to such actual 
destination be direct in the original vessel or involve trans-shipment 
or transport overland. 

"70. Contraband, in paragraph 24 (e), is liable to capture if it 
is actually destined for the use of the enemy government or its 
armed forces. It is immaterial whether the carriage of contraband 
be direct in the original vessel, or involves trans-shipment or 
transport overland. 

"71. A destination for the use of the enemy government or its 
armed forces referred to in paragraph 70 is presumed to exist if 
the contraband is consigned — 

"(a) To enemy authorities. 

"(b) To a part of equipment or supply of the armed forces of 
the enemy or other place serving as a base for such armed forces. 

"(c) To a contractor or agent in enemy territory who, by com- 
mon knowledge, supplies articles of the kind in question to the 
enemy authorities." 

"72. A destination to territory belonging to or occupied by the 
enemy or to the armed forces of the enemy, referred to in para- 
graph 69, is presumed to exist if the contraband is consigned 'to 
order,' 'to order or assigns,' or with an unnamed consignee, but in 
any case going to territory belonging to or occupied by the enemy, 
or to neutral territory in the vicinity thereof." (United States 
Naval Instructions, 1917. Instructions for the Navy of the United 
States Governing Maritime Warfare, June, 1917, 27—8.) 

17. "In modern times the two chief points of controversy have 
related to the carriage of contraband and to trading through 
blockaded ports." "... I only wish to note and extract the principle 
upon which they are based. Broadly, the principle is that the mari- 
time commerce of neutrals is subject to restriction by the acts of 
States at war, if that commerce tends to assist an enemy either 
directly in his warlike operations, or indirectly in the carrying on 
of his own trade upon which his power of continuing the war may 
largely, or even entirely, depend. The object, and the enemy's com- 
merce. The result, and the inevitable result, to neutrals is inter- 
ference with their trade." 



52 

"In the application of the principle, the boundary of the law of 
nations has been extended from time to time to adapt itself to new 
and ever-changing conditions. This law must from its nature have 
room for expansion. It cannot and never could be squeezed into a 
mould of a particular size or shape. It never had or could have 
the quality of immutability attributed to the laws of the Medes 
and Persians. It could not be confined within artificial limits like 
an Act of Parliament. It has the essence and qualities of a living 
organism like the common law of this realm." 

"In the two branches already mentioned, namely, contraband and 
blockade, this natural development is clearly illustrated. Contra- 
band goods were at one time comprised within a very limited cata- 
logue. A,t the present day, the list is extensively enlarged. The 
result to neutrals has been that their trade in such goods has to 
run greater and increasing risks and penalties. Moreover, in recent 
times not only have the contraband goods themselves been subject 
to confiscation, but the neutral vessels which carry them have also 
been rendered confiscable in many cases. It has become established 
law, too, that other goods on the same vessel belonging to the 
same neutral character or enemy destination. It may be added, also, 
that the application of the doctrine of continuous voyage to contra- 
band trade has greatly encroached upon and fettered the trade 
of neutrals in time of war. This doctrine was originated in con- 
nection with the so-called 'Rule of 1756,' but since its extension 
to trade in contraband goods by the Courts of North American 
States at the time of the Civil War it has become established as 
part of the law of nations." (Sir Samuel Evans, February 16, 
1917, supporting the Retaliatory Order in Council in The Leonora 
and Other Vessels (1918). VII Lloyd's Prize Cases, 262, 300.) 

18. On March 7, 1918, the German Supreme Prize 
Court upheld the seizure of conditional contraband 
bound from Rotterdam to Norway on board The 
Norden as contraband of war. The court declared 
that a presumption of enemy destination arising from 
the fact that the shipment of conditional contraband 
was consigned "to order" was not overcome by the 
fact that the goods were to be processed in a neutral 
country. The court maintained that a further demon- 
stration was required that the product would not be 
of use to the enemy. (Garner, J. W., Prize Law 



53 
During the World War (1927), 573.) 

19. "The lists of contraband both absolute and conditional have 
varied from time to time and according to circumstances. The 
belligerent has usually stood for an extended list while the neutral 
has desired a restricted list. Destination has always been a deciding 
factor in determining contraband. This has been particularly im- 
portant in the application of the doctrine of continuous voyage. It 
has been maintained that the ultimate destination is to the country 
in which the goods are actually to become 'a part of the common 
stock.' 

"Many of the questions relating to ultimate destination were 
raised in the American Civil War. The party to whom the goods 
may be consigned does not always prove the ultimate destination. 
Goods often in time of peace are 'to order or assigns.' Even the 
British Government in the American Civil War did not deny 
that such consignments on British vessels might not be open to 
suspicion 'which might be dispelled by the shippers.' Somewhat 
similar questions might arise in shipments of goods to tranches or 
agents or when no consignee is named." (United States Naval War 
College, International Law Situations, 1933, 20—1.) 

By the end of World War I, the doctrine of con- 
tinuous voyage tended to include a doctrine of sub- 
stitution. For example, in the case of The Bonna 
(1918) the British had seized a cargo of Swedish- 
owned cocoanut oil (conditional contraband) on 
board this Norwegian vessel. The cocoanut oil was 
destined to Sweden to be used in the making of mar- 
garine for consumption in Sweden. The Crown 
claimed that the cocoanut oil was liable to capture 
on the ground that "to the knowledge of the manu- 
facturer, the margarine was to be consumed in Swe- 
den in substitution for Swedish butter which in turn 
would be shipped to Germany." The British court 
held, however, that the cocoanut oil was not liable to 
condemnation as conditional contraband destined for 
German military use. See The Bonna, (1918), VII 
Lloyd's Prize Gases, 367, 376-8. 
(4) Destination — Conditional Contraband. 

With or without the doctrine of continuous voyage, 



54 

the question of destination was of vital importance 
in the determination of conditional contraband. At 
the beginning of World War I most nations agreed 
that articles (as named in a list) which can be used 
in war as well as in peace can be considered contra- 
band of war only if destined to the army, navy, or 
other department of the government of one of the 
belligerents or to a place held by military forces. As 
the war continued not only the line between absolute 
and conditional contraband tended to become ob- 
scured but also the line between government and 
private enterprise, for World War I had developed 
into a total war. Consequently, by the end of the 
conflict the few goods remaining on the conditional 
contraband list were seized by the belligerents aboard 
ships bound from one neutral country to another neu- 
tral country as being destined for the enemy govern- 
ment. 

1. Conditional contraband "consists, generally speaking, of ar- 
ticles which are susceptible of use in war as well as for purposes 
of peace . . ." 

"Articles of the character stated are considered contraband if 
destined to the army, navy, or department of government of one 
of the belligerents or to a place occupied and held by military forces ; 
if not so destined they are not contraband, as for example, when 
bound to an individual or private concern." (Department of State 
circular, 1914. United States Foreign Relations, 1914, Supple- 
ment, 274, 276.) 

2. "Destination to enemy territory is not, and cannot properly 
be, considered a good and sufficient ground for seizure of foodstuffs 
or other conditional contraband, unless they are destined for the 
use of the armed forces or of a government department of the enemy 
state." (Acting Secretary of State Lansing to the Ambassador to 
Great Britain Page, Sept. 26, 1914. United States Foreign Rela- 
tions, 1914, Supplement, 229.) 

3. ". . . the right of neutrals to ship foodstuffs and other condi- 
tional contraband to the territories of belligerents, when destined 
and intended for use by the civilian population and not destined 
or intended for ultimate delivery to a department of the belligerent 



55 

government, or its armed forces, is well established. But shippers 
proposing to send foodstuffs to Germany should consider the situa- 
tion produced by reported recent decree of the German authorities, 
which, from the accounts of it received by the Department, appears 
to establish a governmental control, if not to constitute expropria- 
tion, of the food supply in Germany. The British Government 
have said that, in view of this decree and its effect, they must regard 
shipments of foodstuffs to Germany as, in fact, destined for the 
German Government. Without at this time undertaking to deter- 
mine the effect of the decree, the text of which we have not, the 
Department feels that interested persons sould be advised that the 
status of shipments of provisions to Germany is put in doubt by 
reason of the decree mentioned." (Secretary of State Bryan to the 
Secretary of the Treasury McAdoo, Feb. 3, 1915, in reply to an 
inquiry. United States Foreign Relations, 1915, Supplement, 318, 
319.) 

4. Great Britain and France in 1915 informed the Department 
of State "that on account of a German decree by which all food- 
stuffs were taken over by the Government all such commodities 
destined for Germany would be considered subject to capture." 
(Ambassador Page to Secretary of State Bryan, Jan. 27, 1915 and 
French Ambassador Jusserand to Secretary of State Bryan, Feb- 
ruary 6, 1915. United States Foreign Relations, 1915, Supplement, 
317, 322.) 

5. "A Norwegian sailing vessel which left a British port before 
the outbreak of war in 1914 with a cargo of coal for Chile was 
forced by damage to deviate from the direct route to its destina- 
tion. The cargo was seized by a German war vessel on suspicion 
that it was destined for English naval forces, but the vessel was 
allowed to go free because it could not be taken to port. Claims 
were brought before the Hamburg Prize Court for the coal taken 
and for the damage suffered by the ship. The court upheld the 
capture, but the decision was reversed upon appeal to the Imperial 
Supreme Prize Court, on the basis of article 35 of the Declaration 
of London and the corresponding article 36 of the German Prize 
Ordinance. It was stated that the coal was conditional contraband, 
that no proof was furnished of its destination to the enemy armed 
forces, and that full faith would be given to the ship's papers." 
(The Helicon, (1916). Hackworth, G. H., Digest of Interna- 
tional Law, Vol. VII, 67.) 

6. "The cargo consisted of 3,238 barrels of salted herrings, con- 
signed from Haugesund to Lubeck. Lubeck is a German base of 



56 

supply. It is also a port which has been used on a very extensive 
scale since the war for the importation of goods from Scandinavia 
into Germany. Moreover, orders have been made by the German 
Federal Council regulating the import of salted herrings into the 
German Empire, whereby they must all be delivered to the Central 
Purchasing Company, Limited, of Berlin, a company acting under 
the directions of the German Imperial Chancellor. . . ." 

"There is no doubt of its contraband character, or of its destina- 
tion for the enemy Government or its forces." (Sir Samuel Evans 
in The Hakan case, (1916). V. Lloyd's Prize Cases, 161, 168-9, 
188.) 

7. "A French court condemned food shipped on a neutral Italian 
steamer, The Sibilla, as conditional contraband with a hostile des- 
tination. The steamer was sailing from Barcelona to Genoa, and the 
food was apparently destined for Germany." (Hackworth, G. H., 
Digest of International Law, Vol. VII, 70. For other similar 
French cases see Garner, J. W., Prize Law During the World 
War, (1917), 555n.) 

8. 70. "Contraband, in paragraph 24 (e), is liable to capture 
if it is actually destined for the use of the enemy government or 
its armed forces. It is immaterial whether the carriage of contra- 
band be direct in the original vessel, or involves trans-shipment or 
transport overland." 

71. "A destination for the use of the enemy government or its 
armed forces referred to in paragraph 70 is presumed to exist if 
the contraband is consigned — 

"(a) To enemy authorities. 

"(b) To a part of equipment or supply of the armed forces of 
the enemy or other place serving as a base for such armed forces. 

"(c) To a contractor or agent in enemy territory who, by com- 
mon knowledge, supplies articles of the kind in question to the 
enemy authorities." {Instructions for the Navy of the United 
States Governing Maritime Warfare, June, 1917, 27—8.) 

9. "It is clear that the ultimate as opposed to the ostensible 
destination of goods would seldom, if ever, appear on the ship's 
papers or be within the knowledge of the master of crew. It would 
have to be proved or inferred from other sources, and it could 
hardly be contended that if the Crown were in possession of evi- 
dence obtained from such other sources from which an ultimate 
destination in an enemy country could be inferred as reasonably 
probably, the seizure of the goods would not be justified." ( The 
Baron Stjernblad, (1918), VI Lloyd's Prize Cases, 89, 102.) 



57 

10. The British seized and condemned a cargo of cocoa shipped 
from New York to Scandinavian consignees. The cargo was con- 
demned as conditional contraband after it was demonstrated that 
the stocks of cocoa in Germany were controlled by the German 
Government and that the goods had an ultimate German destina- 
tion. Lord Sterndale held that the cocoa would be used for the 
German military forces. (The Esrom, (1919). VIII Lloyd's Prize 
Cases, 492.) 

11. "If a distinction is made between absolute and conditional 
contraband, the distinction between enemy country and enemy 
forces becomes important. If an unfortified area becomes fortified, 
its status changes as a place to which goods may without liability 
be shipped. If the population of an area which has been subject only 
to the civil law is mobilized and put under military control the 
status of the population changes as a population to which goods may 
without liability be shipped." (United States Naval War College, 
International Law Situations, 1933, 21—2.) 

(5) Destination — Further Refinements. 

The question of destination is even more compli- 
cated than it appears on the surface. Before and 
after the question of absolute or conditional contra- 
band has been resolved by really establishing one 
absolute list and the line between government and 
private enterprise has been erased, there has still 
been the difficulty of actually proving enemy destina- 
tion from the ship's documents, for many deceptions 
have been practiced by shippers to conceal enemy 
destination. On the other hand belligerents, desirous 
of preventing all goods of any value in an all-out war 
effort from reaching the enemy, have resorted to 
stringent methods such as the examination of trade 
statistics in order to prove enemy destination, with 
or without the intention of applying the doctrine of 
continuous voyage. 

1. Lord Parker gave an order for discovery in a 
case concerning the condemnation of hides and tan- 
ning materials abroad a Swedish vessel bound from 
South America for Sweden and said: 



58 

"The goods having been shipped in a neutral vessel, and ostensi- 
bly destined for a neutral port, can only be contraband of war if, 
on the principle of continuous voyage, and according they had a 
further or ultimate destination in an enemy country. Intention is 
rarely the subject of direct evidence. As a rule it has to be inferred 
from surrounding circumstances, and every circumstance which 
could, either alone or in connection with other circumstances, give 
rise to an inference as to the intention of the parties concerned in 
a transaction both relates and is relevant to the question what 
that intention really was." {The Consul Corfitzon, (1917). VI 
Lloyd's Prize Cases, 268, 274.) 

2. See above, No. 16 under Destination — Continu- 
ous Voyage and Contraband, for U. S. Naval Instruc- 
tions, 1917. 

(a) Exporter s intention unimportant. 

1. "It is not sufficient for the appellants to establish that Enrique 
Rubio was a Spanish fruit exporter, who had no intention of send- 
ing his goods either to any enemy government or to an enemy base 
of supply. The voyage is not limited to that which a shipper of 
goods sets in motion. Whether goods in any particular instance 
are contraband, by application of the doctrine of continuous voyage, 
is a question of fact. Under the terms of the Order in Council the 
appellants must discharge the burden of proving that the destina- 
tion, if the voyage had not been interrupted, would have been 
innocent. When an exporter ships goods under such conditions that 
he does not retain control of their disposal after arrival at the port 
of delivery, and the control, but for their interception and seizure, 
would have passed into the hands of some other persons, who had 
the intention either to sell them to an enemy government or to 
send them to an enemy base of supply, then the doctrine of con- 
tinuous voyage becomes applicable, and the goods on capture are 
liable to condemnation as contraband." (Lord Parmoor in the case 
of The Nome and Other Vessels , ( 1921 ). IX Lloyd's Prize Cases 
402, 427.) 

(b) Neutral port auction. 

1. The Judicial Committee of the Privy Council 
condemned a cargo of oranges shipped from Spain 
to neutral dealers in the Netherlands for auction in 
the Netherlands. Lord Parmoor, said: 

". . . Their Lordships are unable to hold that the mere fact that 



59 

the goods will be offered for sale by auction at the port of arrival 
is in itself conclusive of the innocency of their destination. It would 
appear to them to be too wide a generalization that whatever the 
special conditions may be, the goods could never be condemned as 
contraband if once it is established that they would be offered at 
public auction in a neutral auction in a neutral market." (The 
Nome and Other Vessels, (1921). IX Lloyd's Prize Cases, 402, 
431-2.) 

(c) Concealment. 

1. "The Lyngenfjord, a Norwegian vessel, was bound from 
New York to Norway, carrying according to its bill of lading and 
manifest sacks of coffee. The sacks were seized and condemned 
by the British when it was discovered that the sacks contained not 
coffee but a mixture of coffee and rubber (rubber being absolute 
contraband). No appearance or claim was made by the shippers. 
The British, of course, induced the German destination from the 
fact of concealment." (The Lyngenfjord, (1916). VI Lloyd's 
Prize Cases, 1 15.) 

(d) Sales agent. 

1. "In the opinion of their Lordships it would be impossible to 
say that an ordinary agent for sale is a 'consignee of the goods' 
within the Order in Council of October 29, 1914. Such an agent 
would not have the real control of the destination of the goods. It 
would be within the power of his principal to give instructions 
from time to time." (The Urna, (1920). IX Lloyd's Prize Cases, 
104, 116. See also The Kronprins Gustaf, (1919). IX Lloyd's 
Prize Cases, 137.) 

2. The British shipped a cargo of cocoa and coffee 
(conditional contraband) shipped by an American 
company on a Danish vessel for Copenhagen, con- 
signed to the American company's agent in Copen- 
hagen. The American company claimed that the 
cargo was intended for consumption in Denmark. Sir 
Arthur Channell, speaking for the Judicial Commit- 
tee of the Privy Council declared that there were 
grounds for the condemnation of the cargo and said : 

". . . In the present case there is no doubt that the burden of 
that proof is thrown on the respondents, inasmuch as the consignee 
named in the bills of lading is admitted to be an agent for sale 
of the goods on behalf of the claimants, the consignors, and there- 



60 

fore was not the real consignee under the Order in Council of 
October 29, 1914, as interpreted in the Louisiana and other cases." 
(The United States, (1921). X Lloyd's Prize Cases, 61, 65-66.) 

(e) Enemy agent. 

1. Modification of the Declaration of London by 
the British Order in Council of Oct. 29, 1914: 

"(ii) The destination referred to in Article 33 of the said dec- 
laration shall (in addition to the presumptions laid down in Article 
34) be presumed to exist if the goods are consigned to or for an 
agent of the enemy state." {United States Foreign Relations, 1914, 
Supplement, 258, 262.) 

2. Sir Samuel Evans in condemning cattle feed on 
board a Norwegian vessel traveling from Brazil to 
Norway declared : 

". . . These goods were sent nominally to people who are, accord- 
ing to the evidence before me, agents for the German Government 
and conduit pipes for the transmission of such goods as these to 
Germany. . . . Upon the evidence before me, it would not be violent 
presumption to say that these goods were on their way through 
these agents to German territory for the use of the German forces. 
Upon that ground also the goods, being conditional contraband, 
are confiscable." (The Tysla, (1916), V Lloyd's Prize Cases, 433, 
436. See also The Liv and Other Vessels, (1917). VII Lloyd's 
Prize Cases, 85.) 

(f ) Consignment "to Order." 

1. Before the announcement of the Order in Coun- 
cil of October 29, 1914, the British Foreign Office 
sent a draft to the Department of State. In regard to 
articles (iii) and (iv) of this Order in Council, the 
British Foreign Office state: 

"With regard to conditional contraband, Article 35 of the Dec- 
laration of London is left standing and will, therefore, exclude the 
application of the doctrine of continuous voyage in respect of goods 
consigned to a neutral firm at a neutral port. The right to seize 
conditional contraband on a ship bound for a neutral port is main- 
tained ... in respect of cases where no consignee in the neutral 
country is disclosed in the ship's papers. A great proportion of the 
cargo shipped to Rotterdam is consigned merely 'to order' and may 
be intended for transit to the enemy country. In such cases, and 



61 

where the goods are carried with a through bill of lading to the 
enemy country, Article 35 would not apply." (United States For- 
eign Relations, 1914, Supplement, 246.) 

"2. Department reiterates its position, as stated in the case of the 
Kroonland respecting shipments 'to Order,' and holds that ship- 
ments of consignments to neutral countries, though to shippers' 
order, being in usual course and in accordance with established 
custom of trade for protection of shipper against refusal of draft, 
cannot rightfully be seized as contraband in absence of facts tend- 
ing to show that they are in fact destined for belligerents; and as 
to the legality of the action of Great Britain in seizing American 
shipments on neutral ships to neutral countries as in the above 
cases on ground merely that shipments are consigned to order, the 
Government of the United States enters an explicit denial." (In- 
struction from Secretary of State Bryan to Ambassador to Great 
Britain Page, Dec. 3, 1914. United States Foreign Relations, 1914, 
Supplement, 354.) 

3. "Another circumstance which has been regarded as important 
in determining the question of real or ostensible destination at the 
neutral port was the consignment 'to order or assigns' without 
naming any consignee." 

"I am not unmindful of the argument that consignment 'to order' 
is common in these days. ..." 

"The argument still remains good, that if shippers, after the 
outbreak of war, consign goods of the nature of contraband to 
their own order without naming a consignee, it may be a circum- 
stance of suspicion in considering the question whether the goods 
were really intended for the neutral country, or whether they had 
another ultimate destination. Of course, it is not conclusive. The 
suspicion arising from this form of consignment during war might 
be dispelled by evidence produced by the shippers. It may be here 
observed that some point was made that in many of the con- 
signments the bills of lading were not made out 'to order' sim- 
pliciter, but to branches or agents of the shippers. That circum- 
stance does not, in my opinion, make any material difference." 
( The Kim; The Alfred Nobel; The Bjomsterjne Bjornson; The 
Fridland, (1915). Ill Lloyd's Prize Cases (167, 300-1.) 

4. "The French Prize Council, in February 1915, said that in 
the case of conditional contraband it was, as a matter of principle, 
incumbent upon the captor to establish that the goods were destined 
for the use of the forces or government of the enemy but that 
when the consignment was 'to order' it did not possess the means 



62 

of doing so and could not be required to do so. It stated that in 
such a case there was justification for inquiring into any facts 
serving to establish the true destination of the goods." (Comment 
on the case of The Nieuw-Amsterdam, (1915), in Hackworth, 
G. H., Digest of International Law, VII, 73.) 

5. "Shipments of honey and coffee (conditional contraband) 
were sent from the West Indies before the war in 1914 on a Nether- 
lands vessel consigned 'to order' at Hamburg. The vessel was seized, 
and proceedings were brought to condemn the cargo as contra- 
band. The French Prize Council held that condemnation was not 
justified, as there was no evidence that the consignees were inter- 
mediaries of the German state or of the German administration. 
The Council released the goods to the claimants on condition that 
they pay the freight to the ship-owner ; it ordered the French Gov- 
ernment to pay the ship-owner damages caused by the delay to the 
vessel and interest on the freight." (Comment on the case of The 
Oranje Nassau, (1915), in Hackworth, G. H., Digest of Inter- 
national Law, VII, 73.) 

6. "In August 1915 the French Prize Council restored to the 
owners a cargo of conditional contraband destined for Amsterdam 
and consigned 'to order,' stating that the latter circumstance did 
not constitute proof of ultimate destination to the armed forces or 
government of the enemy." (Comment on the case of The Kam- 
bangan, (1916), in Hackworth, G. H., Digest of International 
Law, VII, 73.) 

7. 'A Norwegian vessel carrying a cargo of pyrites and fish from 
Norway destined to Rotterdam was seized by a German cruiser 
and brought into port. The pyrites were consigned to the Nether- 
lands Oversea Trust or order. The Hamburg Prize Court con- 
demned the vessel and its cargo, as pyrites were absolute contra- 
band. The German Supreme Prize Court of Berlin affirmed the 
decision. It pointed out that the consignment was 'to order' and 
therefore there was a presumption that the destination was to 
enemy territory. The court refused to accept the distinction argued 
for by the claimants between consignments 'to order' and con- 
signments to a named consignee or his order, saying: 

" '. . . Indeed a bill of lading intended to pass from hand to 
hand does not permit one to know from its own contents whether 
the first consignee which is found mentioned therein will be the 
one who is to receive the merchandise when the transportation has 
once been completed. It is just this uncertainty which ... is de- 
cisive with respect to the legal presumption in prize law. The 



63 

situation is then almost the same for hills of Lading of the sort here 
in question as for bills of lading purely to order.' (Translation)" 

"The court also pointed out that the Netherlands Oversea Trust 
was set up in cooperation with the British; that under the contracts 
between Netherlands importers and the N.O.T. there was no 
obstacle to the re-export of goods to England; and that, indeed, 
under the arrangements with the N.O.T. in certain circumstances 
goods might be sent back from Netherlands ports to English ports 
for submission to the British prize courts. It held that the legal 
presumption of enemy destination had not been overcome by the 
particular circumstances of the case." (Comment on the case of 
The Lupus, (1917), in Hackworth, G. H., Digest of International 
Law, VII, 55-6.) 

(g) Intervening belligerent port. 

1. The German Imperial Supreme Prize Court 
condemned The Alexandra, a Danish vessel bound 
from Copenhagen to the neutral port of Boston, and 
its cargo. The go-ods, absolute contraband under the 
German rules, was condemned because the ship had 
intended to stop en route at an enemy British port for 
coal. The court stated : 

"It must be admitted, in effect, that the enemy destination of 
the goods is proven, since before reaching Boston the ship had to 
touch there . . . only for the purpose of coaling. This interpretation 
tough there . . . only for the purpose of coaling. This interpretation 
follows even from the text of the disposition (Art. 30, par. lb. of 
the German prize ordinance), and it is confirmed by Article 30 
of the Declaration of London and by the commentary thereon con- 
tained in the General Report. If the ship touches an enemy port, says 
the commentary, there will be a strong temptation for the master 
to disembark the contraband which he could probably sell at a 
high price and there would be an equal temptation for the local 
authorities to requisition it. It may be remarked at the same time 
that the claimants are not allowed to prove that there was a really 
neutral destination that this was the intention of the owners." 
{The Alexandra, (1917). Garner, J. W., Prize Law During the 
World War, (1927), 536-7). 

2. "The Norwegian vessel Se?nantha, while carrying a cargo 
listed by Germany as conditional contraband, with directions to 
stop at one of the British ports of Queenstown, Falmouth, or Ply- 



64 

mouth for orders, was seized by a German vessel and sunk. In 
upholding the condemnation of the goods, the Supreme Prize Court 
of Berlin admitted that the actual destination of the goods in the 
case of conditional contraband was decisive. However, there was 
no proof as to the destination intended for these goods. The court 
applied article 37 of the German Prize Ordinance, to the effect 
that an enemy destination may be presumed as to a vessel carrying 
conditional contraband whose papers either do not show a destina- 
tion for the voyage or permit the vessel to enter an enemy port. 
It held that one of the three ports named in the Semanthas papers 
could be regarded as the port of destination and that, since all the 
ports in question were considered bases of supply for the enemy 
armed forces, a presumption of hostile destination arose against the 
goods which the claimants did nothing to rebut." (Comment on the 
case of The Semantha, (1916), in Hackworth, G. H., Digest of 
International Law, VII, 72.) 
(h) " Dummy" consignees. 

1. ". . . the named 'consigned' must be a real and genuine con- 
signee in the business and commercial sense. The fact that a person 
who happens to be in existence is named, if he be merely a nominee 
without any interest, or dummy consignee, is not enough." {The 
Indianic and The Sydland, (1917). V Lloyd's Prize Cases, 267, 
279.) 

(i) Real consignee not shown. 

1. Lord Parker, in upholding the condemnation 
of certain cargoes of conditional contraband con- 
signed to named consignees in Sweden, declared : 

". . . The effect of the Order [the Order in Council of Oct. 29, 
1914] is, therefore, to waive the doctrine of continuous voyage 
except in those cases expressly referred to in the modification. The 
appellants contend that none of the goods in question in these 
appeals can be brought within any of the cases referred to. None 
of the goods were consigned 'to order.' The bill of lading, which 
formed one of the ship's papers, showed in every instance, who was 
the consignee of the goods, and neither the bill of lading nor any 
other of the ship's papers showed in any instance a consignee of 
the goods in territory belonging to or occupied by the enemy. 

"Their Lordships are of the opinion that this contention cannot 
be sustained. It assumes that the words 'if the ship's papers do not 
show the consignee of the goods' mean 'if the ship's papers do not 



65 

show a consignee of the goods.' ... the reason for not waiving 
the doctrine of continuous voyage in the case of consignments to 
order can only have been that in the case of such consignments the 
shipper retains the control of the goods, and can alter their des- 
tination as his interests may dictate or circumstances may admit. 
This control may, however, be retained by the shipper, even if he 
consigns to a named person, provided that the consignee be bound 
to indorse or otherwise deal with the bill of lading as directed 
by the shipper. It would be useless to retain the doctrine of con- 
tinuous voyage in the case of consignments to order, if the shipper 
could escape the doctrine by consigning to a clerk in his office and 
procuring the clerk to indorse the bill. He would in this manner 
retain as full control of the goods as if the consignment had been 
to order. It is impossible, in their Lordships' opinion, to construe 
the Order as an intimation to neutrals that provided they make 
their consignment to named persons not residing in territory be- 
longing to or occupied by the enemy, they may, in the case of 
conditional contraband, safely disregard the doctrine of continuous 
voyage. ... In their Lordships' opinion, the words 'the consignee 
of the goods' must mean some person other than the consignor 
to whom the consignor parts with the real control of the goods. 
. . . the effect of the Order is to make a considerable concession. 
Under it merchants in one neutral country can, without risking 
the condemnation of their goods, consign them for discharge in 
the ports of another neutral country to the order of buyers or others 
to whom the principal in the ordinary course of business finally 
transfers tne control of the goods. They are not concerned to inquire 
how such buyers or other persons intended to deal with the goods 
after delivery. No intention on the part of the latter to forward the 
goods to the enemy Government will render the goods liable to 
condemnation." {The Louisiana and Other Ships, (1918). V 
Lloyd's Prize Cases, 230, 263-5. See also The Kim and other ships, 
III Lloyd's Prize Cases, 167, 215, 365.) 

(j) Named consignee. 

1. Coffee, destined from Brazil to a Swedish com- 
pany in Sweden and carried on The Kronprinsessan 
Victoria, a Swedish vessel, was condemned as condi- 
tional contraband which was to be forwarded to 
Hamburg, Germany. The Judicial Committee of 
the Privy Council in Great Britain, however, al- 



66 

though recognizing that the British Prize Court was 
justified in finding that the ulterior destination, ruled 
that since the consignees were not "sham" consignees 
article 35 of the Declaration of London as modified 
by the Order in Council of Oct. 29, 1914, prevented 
the capture of the cargo. 

The Judicial Committee through Lord Sumner 
stated : 

". . . Here the claimants are the named consignees, and, upon 
the case made in the Prize Court, they were consignees to whom 
the property has passed before seizure — in fact, the day before. Not 
only so, but they were consignees to whom the consignors had 
parted with the real control of the goods. Their intention, how- 
ever, was to give the goods an ulterior enemy destination. Does this 
intention prevent them from being persons the insertion of whose 
names in the bills of lading causes the ship's papers to 'show who 
is the consignee of the goods'? On principle their Lordships think 
not " 

". . . This appears to be precisely the case, or one of the cases, 
in which, under the Order in Council in question, the ship's des- 
tination and the form of the ship's papers covered the goods. To 
extend the qualities which may be predicated of the consignee, 
whom the ship's papers are to show, to qualities connected with his 
general trade or with particular contracts, independent of the con- 
tract of carriage, would be to protect the goods onljfr when the 
ship's papers show something which in maritime practice they never 
do and rarely could show. The coffee was accordingly in this case 
immune from condemnation, its ulterior enemy destination not- 
withstanding." (The Kronprinsessan Victoria, ( 1919). VII Lloyd's 
Prize Cases, 230, 256.) 

2. In The Oranje Nassau and Other Ships case, the 
British seized and condemned cargoes of coffee and 
cocoa shipped by a German national domiciled in 
Haiti on neutral vessels. The cargoes were destined to 
The Netherlands and were consigned to the Nether- 
lands Overseas Trust, for the shipper or a Nether- 
lands bank. 

". . . The N.O.T. was established in order to prevent contraband 
being sent into Germany, and in order that goods might be 



67 

shipped to them to avoid interference from the British authori- 
ties, so that neutral trade might not be molested more than was 
necessary. But the character in which the N.O.T. received the 
consignments seems to me to depend upon the facts of each particu- 
lar case. If they received consignments as agents for consignees 
who had bought, or purchasers who had bought, the goods, and 
who, when they arrived in Holland, had the control over them, 
and could direct their ultimate destination as they liked, then the 
character of the N.O.T. was that of the purchaser to whom the 
goods were going, and the N.O.T. would be consignees within the 
meaning of the Order in Council, and the decisions upon it. But 
if the N.O.T. were only receiving goods as agents for the consignor, 
to dispose of them later for the consignor in the way in which he 
directed, then in my opinion they would not be such consignees, 
and their position again would be that of the person for whom 
they were receiving the goods. ... it does not seem to me that it 
can be said that the N.O.T. were persons other than the consignor 
who had the complete control of the goods." {The Oranje Nassau 
and Other Ships, (1919). IX Lloyd's Prize Cases, 189, 192-3. See 
also The Noordam, (1919). VIII Lloyd's Prize Cases, 337.) 

(k) Trade Statistics. 

1. "A French decree of July 7, 1916 established the presumption 
of hostile destination in the case of absolute contraband on a ship 
destined to the ports of a neutral country adjacent to enemy terri- 
tory when the imports into the neutral country were largely in 
excess of v the normal pre-war importations. The French Prize 
Council applied this decree in condemning a cargo of wine and 
spirits sent from Spain to Denmark on a Danish vessel, when it was 
shown that the normal peacetime importation of wines and spirits 
amounted to 4,318 metric tons, while the 1916 importations 
amounted to 35,832 metric tons." (Comment on the case of The 
Tiber, (1918), in Hackworth, G. H., Digest of International 
Law, VII, 52-3.) 

2. The Judicial Committee of the Privy Council 
in dismissing the appeal of the shippers from a con- 
demnation of a cargo of dried fruits, stated: 

". . . The President has found that the statistical evidence estab- 
lishes a case which throws upon the appellants the onus of show- 
ing that the goods were not going to Germany. Their Lordships 
concur in this opinion. There is ample statistical evidence to replace 
an obligation on the appellants to show that the destination of the 



68 

goods is innocent. The President further finds that it is impossible 
for him to say that the appellants have discharged the onus thrown 
upon them, and their Lordships concur in this finding." (The Urna, 
(1920). IX Lloyd's Prize Cases 104, 114.) 

3. See also the following cases: The Kim; The Alfred Nobel; 
The Bjornsterjne Bjornson; The Fridland, (1915). Ill Lloyd's 
Prize Cases , 167, 294—5. The Kronprinsessan Victoria, (1919). 
VII Lloyd's Prize Cases, 230, 246. The Oranje Nassau and Other 
Ships, (1919). IX Lloyd's Prize Cases, 189, 201. 

(1) Assurances against re-export. 

Some of the European neutral countries tried to 
assure the belligerents that certain goods if imported 
into the country would not be re-exported. This 
assurance was attempted by the promulgation of laws 
prohibiting the export of those certain commodities 
and the establishment of government purchasing com- 
missions. Both Great Britain and Germany did not 
believe that the laws at least, were enough to pre- 
vent re-export. 

1. "... It is true, no doubt, that the municipal laws of both 
Denmark and Sweden prohibit the export of fodder stuffs, but it 
is not clear that this prohibtion includes transshipment at Danish 
or Swedish ports, or that licenses for export are not readily granted 
by the Danish or Swedish authorities, at any rate if the stuffs in 
question are not really needed for home consumption. The experi- 
ence of the laws referred to, however stringent, can be evaded." 
(The Louisiana and Other Ships, (1918). V Lloyd's Prize Cases, 
230, 257-8.) 

2. "In a case involving the consignment of dried fruits to the 
Swedish Victualing Commission, which dealt in such goods for the 
purpose of 'monopolizing that trade for bona fide Swedish con- 
sumption,' the British Prize Court found that the Commission did 
its best to carry out its announced purpose and that the goods in 
question belonged to the Commission and were bona fide intended 
for consumption in Sweden." (Comment on the case of The Pacific; 
The San Francisco, (1917), in Hackworth, G. H., A Digest of 
International Law, VII, 62-3. See VII Lloyd's Prize Cases, 75.) 

3. "In the case of The Brage, the German Imperial Supreme 
Prize Court sustained the decision of the Kiel Prize Court to con- 
demn a cargo of conditional contraband which was destined for 



69 

Sweden but consigned 'to order.' The German Imperial Supreme 
Prize Court held that it had been shown that in the contract of 
sale for the goods it had been stated that the goods were for con- 
sumption in Sweden and that the Swedish Government prohibited 
export from Sweden of goods such as these." (The Brage, (1917). 
Garner, J. W., Prize Law During the World War, ( 1927) , 573.) 
4. "A Norwegian vessel carrying linseed oil (conditional con- 
traband) from Rotterdam to Norway, consigned to order of named 
consignees living in Norway, was seized by a German warship. 
The claimants showed that the oil was to be used in Norway for 
the manufacture of edible fats which would not be consumed in 
Norway but which would be held there until the end of the war. 
The Norwegian Government prohibited the export of these prod- 
ucts. The German Imperial Supreme Prize Court upheld the con- 
demnation of the cargo as conditional contraband with a hostile 
destination. The court said that when goods were consigned to 
order there was a presumption of hostile destination although the 
ship was seized while on a voyage to a neutral port and that the 
existence of an export prohibition in the neutral country was not 
sufficient to overcome this presumption of hostile destination. The 
intention of the claimants was held to be not decisive." (Comment 
on the case of The Norden, (1918) in Hackworth, G. H., Digest 
of International Law, VII, 63.) 

(6) Navicerts. 

In order to avoid friction with neutral countries 
as much as possible, Great Britain in 1916 instituted 
a system of navicerts or letters of assurance. Under 
this system, neutral goods were given a kind of com- 
mercial passport before they were shipped, insuring 
in passage more freedom from interference by the 
British Contraband Control System. 

1. "The term navicert (or letters of assurance) is applied to 
documents issued by officials of a belligerent state, indicating that 
the cargo of a vessel sailing from a neutral port corresponds to the 
manifest. Its purpose is to serve as a 'sort of commercial passport,' 
to facilitate the passage of the vessel and avoid the necessity of 
search of the cargo by the belligerent, but it does not convey any 
guaranty that the vessel and cargo will be free from seizure or 
interference." (Comment in Hackworth, G. H., Digest of Inter- 
national Law, VII, 212.) 



70 

2. "This system, which first became operative in March, 1916, 
when it was made applicable to cargoes shipped from the United 
States to the Scandinavian countries adjacent to Germany, was 
in substance a system whereby particular consignments of goods 
were given what might be called a commercial passport before 
they were shipped ; this passport, which derived its name from the 
code-word 'navicert,' insured the consignment an undisturbed 
passage." (Ritchie, H., The "Navicert" System during the World 
War, (Washington, 1938).) 

3. "Navicerts were given a validity of two months extending 
from the date of issue up to the time of shipment. No fee was 
charged for their issue, but the applicant was expected to defray his 
share of the cost of the abbreviated telegrams to London where 
such inquiry was necessary. It was arranged by the Embassy that 
the navicert issued, or if need be a duplicate, should be furnished 
to the shipping company, in order that it might accompany the 
shipment, being removed by the boarding officer on the vessels' 
arrival at a British port. It was further arranged that the dis- 
tinguishing mark and number of each navicert should be entered 
against the item of cargo on the ship's manifest covered by it, and 
British consular officers at ports in the United States were notified 
by the Embassy of the issue of navicerts, and instructed to exercise 
a general supervision over the entries so made. On the arrival of 
the vessel at a British port each consignment covered by a navicert 
could thus be readily identified by the boarding officer, and tele- 
graphed to the Contraband Committee for purposes of verification 
and record." (Ritchie, H., The "Navicert" Systejn during the 
World War, (Washington, 1938), 10.) 

4. "Navicerts were worded as follows: 'As far as is at present 
known there would appear to be no objection on the part of the 
British Government to this consignment.'' (Ritchie, H., The 
"Navicert" System during the World War, (Washington, 
1938), 1.) 

5. "From the outset the system is said to have worked satis- 
factorily, and, as it attained fuller development, to have conferred 
advantages which have been shortly summarized as follows : Ex- 
porters and shipping companies were exposed to a minimum of 
delay and inconvenience; parties were spared the cost of insurance 
against risk of detention ; quicker clearance could be given to 
vessels; objectionable shipments were to a large extent eliminated; 
British ports did not have to be encumbered by the discharge of 



71 

cargoes; while the system also enabled a statistical record to be 
maintained in advance of the imports of the receiving countries." 
(Ritchie, H., The "Navicert" System during the World War, 
10-1.) 

6. ", . . About the time I was appointed the Consul-General 
of the United States came to see me, and he pointed out to me. 
'You say in your diplomatic representations to the United States 
that, after all, British goods suffer just as much as American goods 
from the blockade, and that we are not really injuring American 
goods and American traders in any way beyond the injury which 
the British trader suffers. That is not quite right, because the 
British trader can go to your War Trade Department before he 
makes any arrangements with regard to the shipping of the goods 
and he can obtain a license. . . . That is not the case in the United 
States. Cannot you do something to supply that want?' We there- 
upon organized a system of Letters of Assurance, as it is called 
in the States. It is perfectly voluntary. Nobody need take out 
letters of assurance unless he wished to do so, but if he likes to 
go to our authorities there and make inquiries whether a particular 
ship is likely to meet with difficulty, he can obtain from those 
authorities in America letters of assurance, and then the goods, 
generally speaking, unless something exceptional intervenes, go 
through without any trouble or difficulty. That device has been 
of enormous importance in smoothing the difficulties which had 
before then existed with America, and it has been of equal im- 
portance in enabling us to know exactly what is going on in ref- 
erence to exports from the United States to these neutral countries. 
It has enabled us, without any unfairness or injustice, to regulate 
the supplies to these neutral countries." (Lord Robert Cecil, as 
Minister of Blockade in the House of Commons, Mar. 27, 1917. 
Parliamentary Debates, House of Commons, 5th ser., vol. 92, 
col. 254.) 

7. "At the present time all goods which leave the United Kingdom 
[States] for European destinations, practically without exception, 
are covered by British 'letters of assurance' or equivalent documents. 
This means that the shippers consult the British authorities in the 
United States before forwarding their goods, and give certain 
guarantees that the ultimate destination of the goods is satisfactory. 
Then the ship proceeds on its way, and the cargo is examined 
either at Halifax, Kirkwall or Lerwick, to see that it is in order, 
and the enforced call at an intermediate port of course involves 
considerable danger to the ship, and great loss of time of time in the 



72 

manipulation of the cargo." (Consul General at London, Skin- 
ner, to Ambassador to Great Britain, Page, April 3, 1917, 
enclosure. United States Foreign Relations, 1917, Supplement 2, 
vol. II, 804.) 

8. "In a discussion between the American Consul General at 
London and representatives of the British War Trade Intelligence 
Department 'It was agreed that the navicert system, which has been 
in operation for over a year and which is now thoroughly under- 
stood both by shippers and importers, should if possible be main- 
tained. ... It was considered that the proportion of navicerts which 
had been dishonoured was extremenly small, probably no more than 
one in five hundred." (Memorandum of the British War Trade In- 
telligence Department. Comment in Hackworth, G. H., Digest of 
International Law, VII, 214. United States Foreign Relations, 
1917, Supplement 2, vol. II, 803, 806.) 

9. During negotiations between Great Britain and 
the United States concerning enemy commerce, the 
Joint Subcommittee on Export Licenses reported on 
May 14, 1917: 

"Hitherto, the only control over exports from the United States 
has been carried out by the system of letters of assurance issued 
by the British Embassy in the case of shipments to Norway, Sweden 
and Denmark. These letters of assurance represent simply a state- 
ment made to such American exporters as may apply to the British 
Embassy that so far as the British Government is aware, and subject 
to new facts coming their knowledge subsequent to the issue of the 
letter, there is no objection to the shipment of the articles through 
the British naval patrols. Consequently, a letter of assurance is not 
a license but simply a facility and operates as a pass attached to 
the goods for the information of the examining officer at the British 
port of call, or the British naval patrol. 

"In order that such a pass may be as certain and effective as pos- 
sible applications for letters of assurance are referred by the 
British Embassy to London by telegraph in all cases where the char- 
acter of the consignee or the amount of the shipment raises any 
doubt as to its ultimate destination. The letter of assurance thus 
merely aims at assuring the exporter a maximum of certainty that 
the goods will reach their destination without difficulty and with the 
minimum amount of delay in examination." ( United States Foreign 
Relations, 1917, Supplement 2, vol. II, 849.) 

10. ". . . There was also in existence at that time a system de- 



is 

signed for the convenience of honest Neutral traders whereby 
British Consular Officers in Neutral ports issued certificates upon 
being satisfied as to the character and destination of cargo intended, 
so far as appeared, for Neutral consumption. The fact that the 
British Consul-General issued a certificate for this cargo has been 
treated as tending to found a claim. I cannot give effect to that. 
It was a mitigation in favour of Neutrals of the stringent procedure 
which was being exercised and intended to be exercised by the Brit- 
ish Government in the exercise of its rights as a belligerent, and the 
Neutral shipowner or shipper or consignee who took advantage of 
it, took advantage of it with the defects which were inherent in it, 
and subject to the defects which arose by the nature of the system 
out of which the giving of certificates arose." ( The F. J. Lisman, 
1919. Hackworth, G. H., Digest of International Law, VII, 215.) 
7. Neutral Goods on Enemy Ships. 

Neutral goods were safe on an enemy ship if they 
were not contraband. Most of the cases involving 
this principle arose out of captures made in the first 
months of World War I. 

1. In The Schlesien case, 1914, the British Prize Court said that 
a submarine signaling device, American-owned, in a German mer- 
chant vessel was not "neutral goods" within the meaning of the 
Declaraticn of Paris. Therefore, the device was condemned. {The 
Schlesien, 1914, II Lloyd's Prize Cases, 92.) 

2. In regard to a shipment of pepper on the German vessel 
Schlesien, the United States Department of State said : ". ; . it 
appears that the shipment of pepper in question was made on a 
German merchant vessel from Batavia bound for Bremen, from 
which point the pepper was to be transshipped to Baltimore. Under 
the generally recognized principles of international law, this pepper, 
consigned to a neutral and shipped before the outbreak of hostili- 
ties, is not contraband and is not the lawful subject of confiscation 
or condemnation. But you are informed that the vessel in which 
the pepper was shipped, being a German vessel, is subject to seizure 
on the high seas by any of the countries with which Germany is 
at war, and if the vessel is or shall be captured, the part of your 
goods while not subject to confiscation, will necessarily undergo 
the delay and risks of the seizure of the vessel." (Counselor for the 
Department of State, Lansing, to Parrish Brothers, Inc., Aug. 1), 
1914. Comment in Hackworth, G. H., Digest of International 
Law, VII, 11.) 



74 

3. The Acting Secretary of State Lansing in October 1914 in- 
quired of the Ambassador to Germany Gerard, who in turn asked 
the German Government, whether prize court proceedings would 
be held in regard to American-owned cargoes on board British 
vessels sunk by German belligerent action. The reply was in the 
affirmative. (United States Foreign Relations, 1914, 330, 336.) 

4. In two cases in 1915, The Glitra and The Indian Prince, Ger- 
man courts refused to compensate or restore to neutral owners of 
goods on enemy ships seized or sunk. (The Glitra, 1915, United 
States Foreign Relations, 1915, Supplement, 350, 572. The Indian 
Prince, 1915. United States Foreign Relations, 1915, Supplement, 
520, 522.) 

5. In the case of The Marth-Bockhahn, 1919, The French Con- 
seil d'Etat said that non-contraband cargo owned by an American 
aboard a German vessel captured by the French should be released, 
since the owner had proved his neutral nationality. ( The Marth- 
Bockhahn, 1919. Hackworth, G. H., Digest of International Law, 
VII, 11-12.) 

8. Non-Contraband. 

After the expansion of the contraband lists, little 
except hospital supplies were considered as non- 
contraband and exempt from capture. At times dis- 
cussions even arose about the status of hospital sup- 
plies. 

1. "While hospital supplies usually received a measure of con- 
sideration in transit from neutral to belligerent countries, other 
articles were from time to time allowed to be exported. Some neu- 
tral states, owing to weakness, protested and submitted to restric- 
tions generally admitted to be beyond the limits of legality. Some 
neutral states, for reasons less evident, submitted to unjustifiable 
interference with commerce." (United States Naval War College, 
International Law Situations, 1933, 23.) 

2. Some articles, besides hospital supplies, which were considered 
supposedly as of no utility in war were mentioned now and again 
in dispatches. 

"Proclamation issued to-day requires that all articles exported 
to Holland be consigned to Dutch Government, diplomatic or con- 
sular offices, with permission of Ministry of Foreign Affairs, or 
Netherlands Overseas Trust, except printed matter, returned con- 
tainers, worn clothing and personal effects, live animals not used 



75 

for food, sanitary earthenware, pottery and common earthenware, 
books, dolls, toys, wooden clock cases, slate and slate pencils, postage 
stamp and postcard albums. Proclamation apparently intended to 
permit free shipment of articles here mentioned." (Consul General 
at London, Skinner, to the Secretary of State, December 23, 1916. 
United States Foreign Relations, 1916, Supplement, 490.) 

3. In a telegram to the Secretary of State the American Am- 
bassador in Spain on September 22, 1914 said: 

"In an interview yesterday morning His Majesty informed me 
confidentially condition of wounded soldiers, particularly in French 
hospitals where there are inadequate supplies, especially of bandages 
and absorbent cotton, was deplorable and expressed an earnest 
wish for our cooperation in relieving this situation. To that end he 
hopes that the United States and Spanish Ambassadors accredited 
near various European courts now at war will make a joint request 
for arrangements between countries of hospital supplies and the 
such supplies in transit on the high seas may be considered by them 
neither contraband nor conditional contraband of war but free. 
Please telegraph whether Department can see its way clear to give 
to our diplomatic officers concerned the instructions necessary to 
realize His Majesty's hope." United States Foreign Relations, 1914, 
Supplement, 831. United States Naval War College, International 
Law Situations, 1933, 23—4.) 

4. The American diplomatic representatives in the belligerent 
countries were instructed by the State Department to communicate 
this request. A general agreement in principle was obtained. The 
Geman reply stated : 

"Your circular September 24. The Foreign Office replies to joint 
request that No. 28, paragraph 1, of the German prize ordinance of 
September 30, 1909, already provides that articles serving exclu- 
sively to aid the sick and wounded shall not be treated as contraband 
and may be requisitioned subject to payment compensation only in 
case of urgent military necessity and when their destination is to 
the territory of the enemy or to territory occupied by the enemy 
or to the armed forces of the enemy." {United States Foreign Rela- 
tions, 1914, Supplement, 835. (United States Naval War College, 
International Law Situations, 1933, 24.) 

5. The French Government stated: 

"While appreciating the humanitarian attitude of the United 
States Government, the French Government does not think the 
moment propitious for agreement between belligerents, even on a 
subject which by its character could be placed beyond reach of 



76 



conflict. Experience of contempt which certain belligerents show for 
international conventions to which they have agreed gives grounds 
for apprehension that they would not observe a new agreement nor 
execute its provisions as soon as it was to their advantage not to 
do so. The French Government recalls that definition of objects 
mentioned in Article 29 of the Declaration of London was sum- 
marily made in the general report at the London conference by the 
drafting committee, and it was thus agreed that the immunity 
established under Article 29 applied to drugs and various medicines. 
The French Government adds that while it might be a delicate 
matter to be more precise and extend obligations of belligerents 
during war beyond where they were fixed in time of peace, never- 
theless it would not refuse to study the suggestions of the American 
Government to draw up a list of drugs and medicines whose 
character as 'articles serving exclusively to aid the sick and wound- 
ed' shall be closely defined." {United States Foreign Relations, 
1914, Supplement 836. United States Naval War College, Inter- 
national Law Situations, 1933, 24.) 

6. "Since the beginning of the present war, the American Red 
Cross has invited contributions of money and supplies with which 
to aid the wounded and suffering of all the belligerents. We have 
shipped to the Red Cross societies of each belligerent hospital sup- 
plies contributed to us for that purpose. We have found no diffi- 
culty in sending such article to the Entente Allies. We have had to 
obtain permits from Great Britain for the shipments to the Red 
Cross of the Central powers. Until September 1915, there was sub- 
stantially no delay in the granting of these permits by Great Britain. 
Since that time, we have had much difficulty in securing them, and 
the supplies donated in kind and designated for the use of the Cen- 
tral powers have accumulated in our warehouses in New York. A 
permit was granted for only one shipment since that time — in Janu- 
ary of this year. Through your Department, we are now in receipt of 
a communication from the British Government, announcing that it 
does not intend to permit any further shipments, unless it is a 
shipment to our own hospital units, in a territory of the Central 
powers. This exception amounts to no concession, for the reason 
that as the British Government was advised in August last, after 
the first of October, for lack of funds, we were able to maintain 
no hospital units in any of the belligerent countries. The authorities 
of the American Red Cross believe that under the Geneva conven- 
tion, to which the United States and all the belligerent powers are 
signatories, the United States has the treaty right to insist that 



11 

articles serving exclusively to aid the sick and wounded in the form 
of hospital supplies, shipped by the American Red Cross to the 
Red Cross of the Central powers, shall not be declared contraband, 
but shall be allowed safe-conduct to their destination." (Ex-Presi- 
dent Taft, then chairman of the central committee of the American 
Red Cross to the Secretary of State, May 8, 1916. United States 
Foreign Relations, 1916, Supplement, 948. United States Naval 
War College, International Law Situations, 25.) 
7. Secretary of State Hull before the 
Senate Committee on Foreign Relations, 1936. 

1. "The next thing that seemed to have been demonstrated by the 
World War was that, unlike preceding periods and preceding wars 
of consequence, this was not a war between the military forces of 
nations alone, not a war between soldiers; it was a war between 
the combined populations, civil and military. It was not a war 
involving the use of military implements and instruments alone, 
but it was practically a test of the economic strength as well as the 
military strength of the nations. 

"The result was that the belligerent in control of the seas said, 
to all practical intents and purposes, 'We have to make absolute 
contraband what has been called conditional contraband in the 
past. We have practically to prevent commerce between neutrals 
and our enemies either directly or indirectly. 

"The result was that the doctrine of continuous voyage was ex- 
panded to cover virtually all commerce. The nation in control of 
the seas, before the war ended, dominated almost every dollar's 
worth of commerce between neutrals and any part of Europe. That 
was through the expanding of the whole doctrine of contraband, 
conditional contraband, and also, as I have said, the doctrine of 
continuous voyage, and furthermore, through curtailing other 
rights of neutrals. In other words, nearly all of what had thereto- 
fore been the ordinary rules of neutrality and neutral rights were 
more or less set aside, so that when the war ended there was in 
several respects virtual chaos so far as neutral rights were con- 
cerned." 

". . . When the United States entered the war it issued instruc- 
tions for the Navy, June 30, 1917, which set forth a general list of 
contraband which may be considered almost as inclusive as the 
British list of 1916. In this American contraband list there was no 
expressed distinction between absolute and conditional contraband. 
Destination was the deciding factor." 



78 

". . . I should like to say that the situation when the war ended 
apparently was that the whole law ... on the subject of contraband, 
absolute and conditional, had been merged into the one subject of 
contraband, absolute. The question of destination to some extent 
figured . . ." (Testimony by Secretary Cordell Hull before the 
Senate Committee on Foreign Relations on the proposed Neutral- 
ity Act of 1936, Jan. 10, 1936. Hearings before the Senate Com- 
mittee on Foreign Relations, 74th Congress, 2d session, Jan. 10, 
1936 on S. 3474 regarding Neutrality, 11-2, 38, 39.) 

9. Harvard Draft Convention on the Rights and 
Duties of Neutral States in Naval and Aerial 
War, 1939. 

This draft convention is an attempt to resolve the 
conflict between neutral and belligerent rights. The 
principle underlying this proposal is as follows: on 
the one hand grant to the belligerents a broadened 
conception of blockade, and on the other hand give 
the neutrals more adequate guarantees for the pro- 
tection of legitimate inter-neutral trade. The hope 
for result, of course, is less interruption of the com- 
mercial life of the world in time of war. 

This plan grapples, therefore, with the difficult 
problems of continuous voyage and ultimate destina- 
tion. To solve these questions, the draft convention 
proposes that the neutral states accept new duties in 
regard to the supervision of goods received in their 
ports but intended to pass on to a belligerent. Trade 
between two neutrals is to be free and is to be pro- 
tected by a certificate system for which both neutral 
and belligerent states are to be responsible. Under this 
certificate system contraband lists would be unneces- 
sary, eliminating an objectionable feature of past 
practices in time of war. 

(1) The Draft Convention, 1939. 

Article 40. "Except as otherwise provided in this Convention, 
a belligerent may not interrupt trade in neutral vessels between 
two neutral ports." 



79 

Article 41. "A neutral State may issue certificates of neutral- 
ity in accordance with the rules laid down in Annex II to this 
Convention." 

Article 42. "(1) Prior to the clearance of a vessel with a cer- 
tificate of neutrality from its territory, a neutral State shall give 
a public notice of departure containing: 

"(a) The name of the vessel, its tonnage, time of departure, 
approximate route, destination, probable time of arrival 
thereat and general description of the ship and its cargo; 

"(b) If the vessel is convoyed, an adequate identification of the 
convoying warship or warships. 

"(2) if the announced departure of the vessel is delayed, or if 
other announced details are altered, a corrected notice shall be 
issued. 

"(3) A certified copy of the notice shall be given to the master 
of each vessel named therin. 

"(4) A neutral State may also give publicity by radio to notices 
of departure. Upon the request of a belligerent, a neutral State 
shall use the radio facilities at its disposal to bring to the knowledge 
of belligerent warships or aircraft at sea notices of departure, but 
such messages may not be sent in code." 

Article 43. In regard to neutral convoys. 

Article 44. Convoyed neutral ships with Certificates of Neu- 
trality to be painted white and carry certain lights, etc. 

Article 45. Neutral state to prevent uncertified vessels from 
leaving with similar paint and markings. 

Article 46. Penalties for neutral ships violating these regulations. 

Article 47. "(1) A quota limitation is required for imports into 
a neutral State if demanded by a belligerent in accordance with 
the provisions of this article. ■ 

"(2) A belligerent may demand that a neutral State publish 
monthly data as to its imports, their amount, value, disposition 
or ultimate utilization, and data as to its exports, their amount, 
value and destination, if there are being imported into the neutral 
State goods which 

"(a) are publicly listed by any of the belligerents as to use in 
war; and 

"(b) are of a kind which the enemy of the demanding belligerent 
imports directly or indirectly; and 

"(c) are either imported into the neutral State for exports 
in their original or in a processed state, or imported 



80 

in amounts exceeding normal peace time imports, taking 
into account normal expansion not due to supplying war 
demands in belligerent markets. 

"(3) A neutral State shall at once proceed with the publication 
as demanded. 

"(4) However, if the neutral State does not agree that factual 
conditions exist justifying the demand, it shall so notify the demand- 
ing belligerent. At the same time it shall designate one of its nation- 
als who, with a person designated by the belligerent, shall choose 
a national of a third State ; and these three persons shall constitute 
an arbitral board to determine whether the factual conditions 
exist justifying the demand. If a majority of the board decides that 
the belligerent has made out a prima facie case under paragraphs 
(a), (b), and (c) of section (2) of this article, the neutral State 
shall continue the publication as demanded; if a majority of the 
board decides that the belligerent has not made out such a prima 
facie case, the neutral State may cease publication. 

"(5) If the belligerent is not satisfied by the neutral State's 
published statements that goods imported by the neutral State are 
not reaching its enemy in their original or in a processed state, 
it may notify all neutral States that it demands the fixing of a 
quota in accordance with Annex III to this Convention. 

"(6) The publication of data as required under section (2) 
of this article may be dispensed with if the neutral State consents 
to the fixing of a quota under section (5)." 

Article 48. "(1) A neutral State may also issue a certificate of 
neutrality to a vessel covered by an agreement made by the neutral 
State with both belligerents. 

"(2) Such an agreement may specify the commodities and define 
the quantities thereof which may be shipped from the neutral State 
by private persons to a belligerent or from a belligerent to a neutral 
State under guaranty of safe passage. 

"(3) Such an agreement may be made for specific voyages or for 
specified periods of time. It may provide for cancellation upon notice 
in case of fraud or violation of its terms. 

"(4) Such an agreement may specify that certificates of neutral- 
ity may be issued even though the shipment be made in a vessel 
flying a belligerent flag. 

"(5) Beyond supervision of leading and certification, the neutral 
State is not responsible for the execution of such an agreement." 

Article 61. "( 1 ) If a vessel does not display the distinctive colors 
and markings required of a certified vessel under Article 44, or fails 



81 

to produce a certificate of neutrality, and if the belligerent as a 
result of visit and search has reasonable grounds for belief that the 
vessel or its cargo is subject to condemnation or preemption, the bel- 
ligerent may capture the vessel and conduct or send it to one of its 
ports for prize proceedings. If to conduct or send the captured 
vessel to port would involve danger to the safety of the captor or to 
the success of the operations in which he is- engaged at the time, 
the captured vessel may be destroyed subject to compliance with 
the rules laid down in Article 54. In such cases prize proceedings 
shall be held on the basis of the ship's papers and other lawful 
evidence." 

Article 63. "A prize court shall be bound by the following rules: 

"(a) A vessel which intended to run a blockade, may be con- 
demned together with its cargo." 

''(b) Cargo destined for a blockaded port by sea, may be con- 
demned; the vessel may also be condemned if the destination of 
the cargo was known to the owner, charterer or master of the 
vessel." 

"(e) Cargo destined for belligerent territory either directly or 
through a neutal port, may be condemned in so far as it is composed 
of arms, ammunition or implements of war, or of other goods ship- 
ped in violation of a neutral State's prohibition under Article 11. 
If more than half of the cargo by value, weight, volume or freight 
is composed of goods which may be condemned, the rest of the 
cargo and the vessel are similarly subject to condemnation." 

"(f) Any commodity in a cargo destined for a neutral State 
upon whose imports of that commodity a quota has been fixed 
under Article 47, but not included within a portion of the quota 
allocation to the State from which the commodity was shipped, may 
be condemned." 

"(g) Enemy vessels and such parts of their cargo as are of 
enemy ownership may be condemned ; the disposition of neutral 
cargo is not affected by the fact that it is carried in a belligerent 
vessel, but neutral cargo belonging to the owner, charterer, or 
master of a vessel which, under Article 64 or 65 a belligerent may 
treat as an enemy vessel, may be condemned." 

"(h) Cargo destined for » unblockaded belligerent territory 
or for a neutral port affording convenient access to belligerent 
territory and not subject to condemnation under preceding para- 
graphs of this article, may be preempted by the capturing belligerent 
upon payment of the market price current in its territory on the 
date of the arrival of the prize in port, plus ten per cent." 



82 

"(j) Enemy ownership or origin of cargo on a neutral vessel 
does not affect the disposition of the cargo: 'free ships make free 
goods.' " 

"(m) Postal correspondence on a captured neutral vessel is in- 
violable, unless it is being carried to or from a blockaded place 
on a vessel which is subject to condemnation for breach of block- 
ade." 

" (n) Postal parcels may be treated as cargo." {Draft Convention 
on the Rights and Duties of Neutral States in Naval and Aerial 
War, (Harvard Law School, 1939). 33 American Journal of Inter- 
national haw, Supplement, 1939), 181—4, 187—9.) 
(2) Draft Convention Comments. 

(a) Contraband in general. "Under the Declaration of London 
of 1909, neutral vessels were free to trade with other neutral States 
but subject to the application of the doctrine of continuous voyage 
if the cargo contained absolute contraband. Neutral vessels were 
also free to trade with belligerent ports, if the ports were not 
blockaded and if the cargo contained only non-contraband goods. 
Neutral vessels carrying contraband and destined for a belligerent 
port or carrying non-contraband and destined for a blockaded port 
were subject to capture." 

"Under the practices prevailing in the War of 1914-1918, the 
first type of trade was severely limited by the extension of the 
doctrine of continuous voyage into that of ultimate destination, its 
application to conditional as well as to absolute contraband, and 
the expansion of the contraband lists to a point at which the free 
list became practically non-existent. The extension of blockade 
principles to neutral coasts and the establishment of war zones on 
the high seas further crippled this trade. The second type of 
trade — from neutral States to belligerents — was practically elim- 
inated by the same extensions of contraband lists. Some modifica- 
tions in favor of neutral trade were introduced by agreements 
permitting neutrals to import freely certain goods on agreeing to 
supply belligerents with certain other goods." 

"Under this Draft Convention, trade between neutrals would 
receive maximum safeguards. From the earliest times the problem 
has been to reconcile conflicting economic interests of neutrals and 
belligerents. A belligerent naturally desires to prevent his enemy 
from obtaining supplies of any kind. A, neutral naturally desires 
to continue his trade without any restriction resulting from the 
war of other States. The rules of contraband, blockade, etc., grew 
up from an attempt to reach a compromise between these conflicting 



83 

interests." (General Comment, Draft Convention on the Rights 
and Duties of Neutral States in Naval and Aerial War, (Harvard 
Law School, 1939). 33 American Journal of International Law, 
Supplement, (1939), 488.) 

(b) On contraband lists. "The history of the law of contraband 
of war is particularly interesting. For more than two centuries it 
has been agreed that actual arms and ammunition fall within the 
contraband category. But as soon as one leaves a very narrow list, 
differences of opinion appear. An analysis of the treaty provisions 
during the last one hundred and fifty years shows the wide disparity 
of definitions of contraband upon which States from time to time 
have agreed/' 

"Although at the present time it is recognized that there is a 
distinction between goods absolutely contraband and goods condi- 
tionally contraband, little note has been taken of the fact that this 
distinction is, as a matter of general practice, very recent. There 
is not a single bipartite treaty concluded in the last one hundred 
and fifty years which makes a clear distinction between the two 
kinds of contraband and there are only two treaties which suggest 
any such distinction at all. A complete anyalsis of the national 
laws and regulations has not been made, but the indications are that 
even in naval instructions and the like, the distinction is of com- 
paratively recent appearance. The distinction was fully recognized 
at the Second Hague Conference in 1907 and was the basis for the 
rules on this subject drawn up in the Declaration of London. Earlier 
examples of an acknowledgment of the distinction may, of course, 
be found, and the idea itself is usually traced to the classifications 
of Grotius." 

". . . it cannot be said that a clear distinction between goods 
absolutely and conditionally contraband has any deep historical 
roots in the development of the subject." 

"There has never been a general agreement among the States of 
the world as to just what articles are contraband. From the seven- 
teenth century on, many States have taken the position that a 
contraband list might properly be proclaimed by a belligerent dur- 
ing the course of a war and that the belligerent was subject only 
to general limitations in deciding upon the specific articles which 
were to be included in such a list." 

"As is well known, during the War of 1914-1918, contraband 
lists were enormously extended. to a point at which they became 
practically aH-inclusive; the distinction between goods absolutely 



84 

contraband and goods conditionally contrabrand was practically 
abandoned by a number of States, although the United States 
support its continuance." 

The Harvard Draft Convention contains no contraband lists, 
because it would have no useful purpose. "The attempt made in 
the Declaration of London to draw up one list of goods absolutely 
contraband and another list of goods conditionally contraband and 
a third free list, proved to be of practically no value, thus support- 
ing the view of the United States at the Second Hague Conference 
that it is impossible 'to formulate a list of articles on contraband 
that would continue satisfactory for a period of years.'' {Gen- 
eral Comment, Draft Convention on the Rights and Duties of 
Neutral States in Naval and Aerial War, (Harvard Law School, 
1939). 33 American Journal of International haw, Supplement, 
(1939), 488-9, 498-9.) 

(c) On destination of neutral cargo. "On the other hand, the 
distinction as to the destination of neutral cargo — on the one hand 
to the territory of a belligerent and on the other hand to the gov- 
ernment or the armed forces — is very old and it is easy to find in 
the early practices the roots from which the modern notions about 
goods conditionally contraband have sprung." {General Comment, 
Draft Convention on the Rgihts and Duties of Neutral States in 
Naval and Aerial War, (Harvard Law School, 1939). 33 Ameri- 
can Journal of International haw, Supplement, (1939), 498.) 

(d) On plan of Harvard Draft Convention in regard to con- 
traband'. , 

"At the Second Hague Conference, the British Government pro- 
posed that the principle of contraband of war be abolished." 

"The proposal failed because of the opposition of Germany, 
France and Russia, but twenty-five States supported the proposal, 
with Japan, Panama, Rumania and Turkey not voting. The op- 
position to the British proposal, as expressed by the German dele- 
gate, was based on the fact that the suggested abolition of contra- 
band was linked with a new description of a type of unneutral 
service which was said to place a greater restriction on neutral 
commerce than did the traditional law of contraband." 

"Montenegro also opposed the British proposal and the United 
States likewise voted against it. The opposition of the United 
States, however, rested upon special grounds and does not seem to 
have been comparable to the opposition of Germany, France and 
Russia." 



85 

"In view of the long history of conflict attending the subject of 
contraband and in view of the apparent impossibility of defining 
it in a satisfactory way, it is believed that the only solution lies 
in reviving the British proposal in 1907. However, just as the 
British proposal failed in 1907, any similar proposal would prob- 
ably also fail unless it took account of the traditional and inevitable 
point of view of belligerents who will never tolerate the free 
shipment of essential war materials to the enemy if they have the 
physical power to prevent it. The proposals contained in this Draft 
therefore contemplate some extensions of the belligerent right of 
blockade." 

"With the development of submarines and aircraft and also with 
developments in the use of mines, it is now possible even for States 
which are not dominant maritime Powers to blockade enemy coasts. 
There will, of course, be situations in which the superior power of 
one belligerent will make a blockade by the other State ineffective, 
but obviously a convention dealing with neutral rights can not 
guide itself by the principle of equalizing unequal belligerent 
power." 

"There would seem to be very obvious advantages to neutral 
trade if trade were free except to blockaded places even though 
notions of blockade be somewhat broadened. It is believed that a 
large part of the difficulty will be removed if adequate guarantees 
are offered for the protection of bona fide inter-neutral trade. This 
makes it necessary to grapple with the extremely difficult problem 
of continuous voyage and ultimate destination. This is not, how- 
ever, an insoluble problem. If neutral States recognize that by the 
assumption of additional duties in regard to exports to belligerents, 
they can achieve a large measure of freedom for their sea-borne 
commerce, the result should be that war would involve less inter- 
ruption of the commercial life of the world than is the case under 
the existing rules of international law and existing situations which 
make breaches of that law all too frequent." (General Comment, 
Draft Convention on the Rights and Duties of Neutral States in 
Naval and Aierial War, (Harvard Law School, 1939). 33 Ameri- 
can Journal of International Law, Supplement, (1939), 499-500.) 

(e) Summary of this Draft Convention's system. "Trade be- 
tween two neutral States is free and is protected by a system of 
certificates for the accuracy of which both neutral and belligerent 
States make themselves responsible. As a further protection such 
vessels may be convoyed." 



86 

"Neutral States must accept new burdens in regard to the super- 
vision of goods received in their ports but intended to pass in transit 
to a belligerent." 

"In Article 48 it is contemplated that a neutral State may. enter 
into a tripartite agreement with both belligerent parties relative to 
certified and protected trade with the belligerents in specified com- 
modities of definite amounts; instances of somewhat analogous 
agreements may be found during the War of 1914-1918." 

"In certain cases quotas may be established to limit the imports 
of goods by a neutral where continuous voyage to a belligerent 
territory is alleged by a belligerent." 

"If a neutral vessel wishes to carry goods to a belligerent port 
or if it desires to carry to a neutral port" a cargo which may not 
under the rules be certified, the venture is wholly at the risk of 
the neutral individual, subject to Article 63, which in certain cases 
limits the belligerent right to one of pre-emption. This device has 
been utilized frequently in the past, notably in the Jay Treaty of 
1794 between the United States and Great Britain, as a means of 
solving the quandary created by the inability to agree upon a 
contraband list. In all such cases, however, there must be definite 
assurance regarding the safety of the lives of passengers." {General 
Comment, Draft Convention on the Rights and Duties of Neutral 
States in Naval and Aerial War, (Harvard Law School, 1939). 
33 American Journal of International Law, Supplement, (1939), 
(500-1.) 

(f ) On air traffic. "In certified and convoyed aircraft the neu- 
tral can send to another neutral all postal correspondence ; all 
passengers who are not in belligerent service; and all cargo and 
parcel post which have a bona fide ultimate neutral destination, 
subject to a possible quota limitation. In certified and convoyed 
aircraft the neutral can also send to a belligerent anything or any 
persons if both belligerents agree." 

"In uncertified aircraft, the neutral may send any persons or 
cargo to another neutral or to a belligerent subject to the risk of 
interception by a belligerent." 

"It is obvious, however, that important quantities of goods con- 
sidered contraband of war may be carried by air." (General Com- 
ment, Draft Convention on the Rights and Duties of Neutral States 
in Naval and Aerial War, (Harvard Law School, 1939). 33 
American Journal of International haw, Supplement, (1939), 

504, 757.) 



87 

10. World War II. 

Documents reveal that at the beginning of World 
War II belligerent treatment of contraband of war 
was to be patterned after the practices adopted in the 
period 1916-1918 in World War I. 

In varying ways, the usual rules were stated by the 
belligerents: 1) enemy goods are safe on a neutral 
ship if they are not contraband, 2) neutral goods are 
safe even on an enemy ship if they are not contraband, 
and 3) neutral goods are safe on a neutral ship but 
only if they are not contraband. 

Some countries stated that all goods are contraband, 
absolute contraband. Other countries published 
elaborate lists of contraband, making the distinction 
between absolute and conditional. But in reality, 
most goods were treated as being absolute contraband, 
for in total war the distinction between absolute and 
conditional could not be maintained for long. 

The doctrine of continuous voyage, as a result, was 
now considered as being applicable to most goods 
shipped from one neutral state to another, there being 
no real distinction between absolute and conditional 
contraband. 

The navicert system was instituted immediately by 
Great Britain and was supplemented by a system of 
mailcerts. Unlike the experience in World War I 
little or no objection was raised to this procedure by 
the neutral states. 

Cases involving neutral American ships and car- 
goes cannot be found because of the Neutrality Acts 
which prohibited the voyage of American ships or 
the carriage of American-owned cargoes into defined 
danger zones. 

As the war progressed most of the nations of the 
world became involved in the war as belligerents. 
The few neutral states that were left could not trade 



88 

with each other without first submitting their ships 
and cargoes to rigid examination in order to gain 
navicerts. 

1. "... Now it must be clear . . , in particular in the light of 
the problems and controversies raised by the World War, that there 
is at present no generally agreed prize law in regard to some of its 
most important aspects. The controversy as to the legality or 
otherwise of the conduct of war in this sphere by the Allied Powers 
is still raging. The various Governments have since maintained 
their respective, and widely divergent, positions. It would not 
therefore, it is believed, be consistent with the function of an im- 
partial science of International Law to maintain that there exists 
at present a working body of generally agreed rules of prize law, in 
particular in its bearing upon the rights and duties of neutrals. 
Historically prize law has been, in this matter, a compromise be- 
tween two conflicting principles: the freedom of neutral trade 
and the right of the belligerent to prevent such commerce with 
the opposing party as might be of military advantage to the latter. 
International Law has not evolved any overriding principle re- 
conciling these claims in cases when they show a tendency to con- 
flict. The compromise has frequently been the function of the 
relative military and political strength of the belligerents and 
neutrals. This absence of an overriding principle shows itself in the 
hitherto unsolved difficulty, which proved of crucial importance 
during the World War, of answering the question as to whether 
the belligerents or the neutrals ought to bear the brunt of the 
changed conditions of modern warfare." (Oppenheim's Interna- 
tional Law, (6th edition, by Lauterpacht, 1940), 736-7.) 

2. ". . . His Majesty's Government in the United Kingdom 
intend to use their best endeavours to facilitate innocent neutral 
trade so far as is consonant with their determination to prevent con- 
traband goods reaching the enemy. They will be compelled to use 
their belligerent rights to the full, but they will at all times be ready 
to consider s}nnparhetically any suggestions put forward by neutral 
governments designed to facilitate their bona fide trade. 

"In order to secure their objects, His Majesty's Government 
have established contraband control bases at Weymouth, Ramsgate, 
Kirkwall, Gibraltar and Haifa. Vessels bound for enemy terri- 
tory or neutral ports affording convenient means of access thereto 
are urgently advised to call voluntarily at the appropriate base, in 
order that their papers may be examined, and that, when it has 






89 

been established that they are not carrying contraband of war, they 
may be given a pass to facilitate the remainder of their voyage. Any 
vessel which does not call voluntarily will be liable to be diverted 
to a Contraband Control base if an adequate search by His 
Majesty's ships at sea is not practicable. 

"Every effort will be made to expedite the examination of vessels, 
particularly those which call voluntarily for the purpose." (British 
Ambassador to the United States, Lord Lothian, to Secretary of 
State Hull, Sept. 10, 1939. Hackworth, G. H., Digest of Inter- 
national Law, VII, 7-8.) 

3. "1. We have noted the statement in the Embassy's note of 
September 10, that it is the intention of the British Govern- 
ment 'to use their best endeavors to facilitate innocent neutral 
trade so far as is consonant with their determination to prevent 
contraband goods reaching the enemy.' 

"2. This Government on its part desires that its trade with 
neutral countries proceed with the least possible disturbance due 
to the existence of a state of war in Europe. As regards trade of 
neutral countries (in particular the so-called northern neutrals) 
with the United States, it should be fully understood, as has al- 
ready been publicly announced, that this Government reserves all 
rights of the United States and its nationals under international 
law and is not to be understood as endorsing any principle of 
interference with trade of genuine neutral character." (Depart- 
ment of State to the British Embassy, Sept. 1939, as quoted in a 
telegram from Secretary of State Hull to Ambassador Kennedy 
on Sept. 29, 1939. Hackworth, G. H., Digest of International 
Law, VII, 8.) 

4. ". . . The Ministry of Economic Warfare is concerned in the 
first instance with only two questions: the character of the goods 
and the character of the consignee." 

"If . . . the goods are of such a nature that there is danger that 
the goods might be sent on to Germany and thus give comfort and 
assistance to the enemy, either by the export of the goods them- 
selves or by the release of other commodities for export to Germany, 
then the goods are submitted to closer inspection and the character 
of the consignee comes into question. If the character of the con- 
signee is such that the British Government is satisfied that he 
will not ship the goods to Germany, then the goods are released. 
This is accomplished sometimes by a guarantee given by the firm, 
sometimes by a guarantee given by the neutral country to which 
the goods are consigned, sometimes by both. The fact however that 



90 

such guarantees are given is not in itself sufficient in many cases 
to cause the release of the goods. . . ." (American commercial 
attache in Great Britain, Dye, to Secretary of State Hull in regard 
to British practice in detaining cargoes destined for Europe, Dec, 
1939. Hackworth, G. H., Digest of International Law, VII, 8.) 
( 1 ) Contraband Lists, Asbolute and Conditional. 

1. "The Italian War Law of July 1938 continues to adhere to 
that country's abandonment of the distinction between absolute 
and conditional contraband. . . ." (Comment in Hackworth, 
G. H., Digest of International Law, VII, 41.) 

2. Article 22 of the German Prize Law Code of 
August 28, 1939 declared: 

"(1) To be considered as contraband (absolute contraband) are 
all articles and materials which : 

"1. Directly serve the land, naval or air armament and 

"2. Are consigned to the enemy territory or the enemy forces." 

A few days after the outbreak of war, article 22 was 
changed, reading as follows : 

"The following articles and materials will be regarded as contra- 
band (absolute contraband) if they are destined for enemy terri- 
tory or the enemy forces: 

"One. Arms of all kinds, their component parts and their ac- 
cessories. 

(f Two. Ammunition and parts thereof, bombs, torpedoes, mines 
and other types of projectiles; appliances to be used for the shooting 
or dropping of these projectiles; powder and explosives including 
detonators and igniting materials. 

"Three. Warships of all kinds, their component parts and their 
accessories. 

"Four. Military aircraft of all kinds, their component parts 
and their accessories; airplane engines. 

"Five. Tanks, armored cars and armored trains ; armor plate of 
all kinds. 

"Six. Chemical substances for military purposes, appliances and 
machines used for shooting or spreading them. 

"Seven. Articles of military clothing and equipment. 
"Eight. Means of communication, signaling and military il- 
lumination and their component parts. 

"Nine. Means of transportation and their component parts. 
"Ten. Fuels and heating substances of all kinds, lubricating oils. 



91 

"Eleven. Gold, Silver, means of payment, evidences of indebted- 
ness. 

"Twelve. Apparatus, tools, machines and materials for the 
manufacture or for the utilization of the articles and products 
named in numbers one to eleven." 

On Sept. 12, 1939, the following declaration was 
made by the German Government: 

"The following articles and materials will be regarded as contra- 
band (conditional contraband) subject to the conditions of article 
24 of the Prize Law Code of August 28, 1939 (Reichsegesetzblatt 
part one page 1585) : 

"Foodstuffs (including live animals) beverages and tobacco and 
the like, fodder and clothing; articles and materials used for their 
preparation or manufacture." (Department of State Bulletin, I, 
No. 13, Sept. 23, 1939, 285.) 

3. Great Britain proclaimed the following contra- 
band list in Sept. 1939: 

"Schedule I 

"Absolute Contraband 

"(a) All kinds of arms, ammunition, explosives, chemicals, or 
appliances suitable for use in chemical warfare and machines for 
their manufacture or repair; component parts thereof; articles 
necessary or convenient for their use ; materials or ingredients used 
in their manufacture ; articles necessary or convenient for the pro- 
duction or use of such materials or ingredients. 

"(b) Fuel of all kinds; all contrivances for, or means of, trans- 
portation on land, in the water or air, and machines used in their 
manufacture or repair; component parts thereof, instruments, arti- 
cles, or animals necessary or convenient for their use; materials or 
ingredients used in their manufacture; articles necessary or con- 
venient for the production or use of such materials or ingredients. 

"(c) All means of communication, tools, implements, instru- 
ments, equipment, maps, pictures, papers and other articles, ma- 
chines, or documents necessary or convenient for carrying on hostile 
operation; articles necessary or convenient for their manufacture 
or use. 

"(d) Coin, bullion, currency, evidences of debt; also metal, 
materials, dies, plates, machinery, or other articles necessary or 
convenient for their manufacture." 



92 

"Schedule II 

"Conditional Contraband 

"(e) AJ1 kinds of food, foodstuffs, feed, forage, and clothing 
and articles and materials used in their production." (Department 
of State Bulletin , I, No 12, Sept. 13, 1939, 250-1. Canada adopted 
the same list, and France had a similar list.) 

4. In the course of giving a decision in the case 
of The Minna, the German Prize Court of Hamburg 
on December 14, 1939 said: 

". . . It may be considered as correct that the Zellstoff-Werke of 
Reval manufacture exclusively such unbleached strong sulphite 
woodpulp and that this material normally serves in general for 
the manufacture of paper at paper mills. It is also correct that 
the use of such unbleached strong sulphite woodpulp for the manu- 
facture of explosives is not possible without further processing. 
This, however, is not decisive. Mr. Almberg himself admits that 
theoretically such woodpulp may be used in the manufacture of 
explosives by dissolving the woodpulp, treating it with chloride, 
bleaching it and then drying it." 

^This processing, termed by Mr. Almberg a 'theoretical possi- 
bility' does not, however, lie beyond the limits of practicability. The 
convincing opinion of an expert, Dr. Gaertner, scientific adviser 
of the State Chemical Institute of Hamburg proves that in practice 
such reprocessing is being carried out to a great extent. . . ." 

"In any case, whether or not it is a 'substance for the manu- 
facture of munitions, explosives, et cetera' within the meaning of 
Nos. 12 and 2 of the German list of absolute contraband can by 
no means be determined by the question of whether the material 
under investigation is specially suitable or even intended for such 
processing. Just as little may economic considerations as to its suit- 
ability play a decisive part, especially since in war-time special 
conditions would be considered uneconomic but which are unavoid- 
able during war. For the Prize Court the only criterion is the 
objective adaptability ('objecktive V erwendbarkeit') of the ma- 
terial under consideration to the manufacture of articles and 
products listed as absolute contraband." (The Minna, 1939. The 
Minna's cargo of woodpulp, shipped from Estonia and consigned 
to the United States, was condemned as absolute contraband because 
The Minna intended to stop for coal in England, enemy territory. 
Hackworth, G. H., Digest of International Law, VII, 27-8.) 



93 



5. On October 3, 1939, the Foreign Ministers of 
the American Republics in a meeting held in Panama 
resolved : 

"1. To register its opposition to the placing of foodstuffs and 
clothing intended for civilian populations, not destined directly 
or indirectly for the use of a belligerent government or its armed 
forces, on lists of contraband." {Report of the Delegate of the 
United States of America to the Meeting of the Foreign Ministers 
of the American Republics, Held at Panama, September 23-0 cto- 
ber 3, 1939. Department of State Conference Ser. 44, 1940, 58-9. 
Hackworth, G. H., Digest of International Law, VII, 27.) 

6. "Objections to the British and French contraband list of 1939 
were set forth by the Netherlands Government in notes to the 
Governments of the two countries in which it was asserted that by 
the inclusion, in addition to specified articles, of 'articles necessary 
or convenient for their use ; materials or ingredients serving in their 
manufacture' and 'articles necessary or convenient for the pro- 
duction or use of such materials or ingredients,' the field of goods 
considered contraband could be extended to the infinite." 

"The distinction between absolute and conditional contraband 
was said to be based upon reason and to have long been recognized 
by international law, and it was protested that under these lists 
articles indispensable to the life of the whole nation in matters 
unrelated to the military apparatus could be treated as absolute 
contraband. It was insisted that the limitations imposed by inter- 
national law, which directly affected the rights and interests of 
neutrals, should not be lost sight of and that, since the belligerent 
right to seize contraband was an exception to the principle of 
freedom of the seas, it should be interpreted in a restrictive man- 
ner." (Comment in Hackworth, G. H., Digest of International 
Law, VII, 26.) 

7. "The British Government replied on Nov. 20, 1939 to the 
Netherlands Minister in London stating that the list of absolute 
contraband could not be regarded as unduly extensive in view of the 
number of articles now regarded as of direct military use and 
particularly in view of the certainty that any such articles imported 
by Germany would be intended for military purposes. Adherence 
to the distinction between absolute and conditional contraband was 
promised. It was asserted : 

' '. . . It is the undoubted right in international law of a bel- 
ligerent Power to declare what articles it will consider as contra- 



94 

band, within the general definition of contraband as being any 
article of use for the prosecution of the war.'" (Comment in 
Hackworth, G. H., Digest of International Law, VII, 26.) 

8. In the case of the Hakosaski Maru, the French Prize Council 
"held on May 22, 1940 that food (conditional contraband) des- 
tined to Germany should be condemned as conditional contraband 
having hostile destination in view of the extent to which the state 
controlled the distribution of food." (Hakosaki Maru. 1940. Com- 
ment in Hackworth, G. H., Digest of International Law, VII, 70.) 

9. In Great Britain in the case of The Alwaki and Other Ships, 
1940, the British Prize Court arrived at a conclusion similar to 
that in The Hakan. For The Hakan see above under World War 
I. {The Alwaki and Other Ships, 1940. I Lloyd's Prize Cases 
{2d), 43, 46. See also Hackworth, G. H., Digest of International 
Law, VII, 68.) 

10. "In declaring its contraband list in 1940, the Italian Gov- 
ernment referred to the fact that the British and French lists went 
beyond the list announced in the Italian Laws of War of July 8, 
1938, and it included all articles on the British and French lists." 
(Comment in Hackworth, G. H., Digest of International Law, 
VII, 26.) 

11. "The reply of the Netherlands Minister, Jan. 12, 1940, while 
recognizing that 'the centralization and subordination of all the 
means of the nation to the purposes of war may involve certain 
consequences' as to rules regarding contraband which originated 
in a different epoch, stated that 'These considerations . . . cannot 
justify the treatment as absolute contraband of goods or of materials 
which by their nature can serve the needs of the civil population 
as well as those of the armed force.' While refraining from express- 
ing an opinion on the statement in the British note (quoted ante), 
the Netherlands Minister expressed the belief that such an extreme 
extension as that adopted by Great Britain and France had the 
effect of nullifying article 2 of the Declaration of Paris, under 
which the neutral flag covers enemy goods with the exception of 
contraband, 'by making almost all imaginable goods fall within the 
category of contraband.' " (Comment in Hackworth, G. H., 
Digest of International Law, VII, 27.) 

12. "In 1940 the German Prize Court at Hamburg held that 
sawed timber and telegraph poles were contraband because they 
could be used in the construction of military equipment." (Com- 
ment in Hackworth, G. H., Digest of International Law, VII, 28.) 
(2) Destination — Continuous Voyage. 



95 

1. "The French instructions of Mar. 8, 1934 provide in article 
46 that articles of conditional contraband destined for the use of 
the armed forces or administration are subject to condemnation 
whether or not the transporting vessel is destined for a neutral 
port or the cargo is documented for such port. An absolute pre- 
sumption of enemy destination is established when the goods are 
consigned to an enemy agent, whether in an enemy or neutral port, 
or are destined to an enemy fortified place or base of supply (ar. 
48). When the enemy government has taken measures to requisi- 
tion or to control the distrubution of certain goods, a rebuttable 
presumption is established (art. 47) in the following cases: (1) 
when the goods are documented to an enemy port; (2) when they 
are documented to a neutral port and the vessel is first to touch 
at an enemy port or meet the enemy forces; (3) when they are doc- 
umented to a neutral port which habitually serves as a port of trans- 
it to the enemy country and the goods are consigned to order or 
the consignee in the neutral country is not named." (Comment in 
Hackworth, G. H., Digest of International Law, VII, 41.) 

2. Italian War Law of July 1938. "A hostile destination is con- 
sidered (art. 161) to be the enemy forces or territory belonging to 
or occupied by the enemy. A rebuttable presumption of such des- 
tination is established when the documents indicate that the goods 
are consigned to the enemy forces or are to be disembarked in an 
enemy port or one occupied by its forces. The presumption applies 
when the goods are destined to a neutral port but the vessel ap- 
proaches or touches at a port of or occupied by the enemy, or meets 
the enemy armed forces before arriving at the neutral port." (Com- 
ment in Hackworth, G. H., Digest of International Law, VII, 41.) 

3. German Prize Ordinance of August 28, 1939, article 24 (2) : 

"On condition of reciprocal procedure on the part of the enemy 
the articles and materials named in par. 1 [conditional contraband] 
will not be considered as contraband if they are to be discharged 
in a neutral port." (Hackworth, G. H., Digest of International 
Law,N\\,\2.) 

4. "In the case of the City of Joliet the French Prize Council 
on May 22, 1940 held that copper consigned 'to order' to the neu- 
tral port of Antwerp should be condemned, since its ultimate 
German destination was to be presumed from a consignment 'to 
order' to the neutral port of Antwerp should be condemned, since 
its ultimate German destination was to be presumed from a con- 
signment 'to order' to a port serving as a port of transit for Ger- 



96 

many." (Comment in Hackworth, G. H., Digest of International 
Law, VII, 41.) 

5. "A cargo of hides shipped before the outbreak of war in 1939 
from East Africa to the Italian port of Trieste and consigned 'to 
order' for the Yugoslav branch of a firm in Czechoslovakia was held 
by the French Prize Council, in the case of the Edda, on May 15, 
1940, to be contraband with an enemy destination. The Prize 
Council referred to Czechoslovakia as territory under enemy oc- 
cupation and held that the presumption of enemy destination arose 
from the consignment 'to order' to a neutral port serving as a 
normal port of transit to enemy territory." (Comment in Hack- 
worth, G. H., Digest of International Law, VII, 41.) 

6. "In the case of the Tormes the French Prize Council held on 
June 5, 1940 that a cargo of lemons shipped 'to order' and destined 
for Genoa should be condemned as conditional contraband. The 
Council found that Genoa was customary port of transit for goods 
bound to Germany and, in view of the German Government's 
control of food, held that the conditional contraband should be 
treated as if it had been consigned to the German Government." 
(Comment in Hackworth, G. H., Digest of International Law, 
VII, 41.) 

(3) Destination — Refinements. 

(a) Intervening belligerent port. In the case of 
The Minna, the Hamburg Prize Court found that the 
woodpulp cargo of this ship, although destined from 
Estonia to the United States, was absolute contraband 
and should be condemned since the ship had intended 
to stop at a British port for coal. The court declared : 

"On account of the existing possibility of interference on the 
part of the enemy as well as the absence of any reliable control 
in cases of this nature, it has for long been an accepted principle 
of international legislation to presume enemy destination for ab- 
solute contraband, as contained in Article 23 (3) of the Prize Law. 
Neutral countries suffering under this necessary and justifiable 
assumption, therefore, are not confronted by any surprising and 
consequently unfair novelty but by an old, frequently practised 
custom of international law, which they must be supposed to know 
and take into account." 

"A vessel carrying absolute contraband, the captain of which 
seriously contemplates a choice between two possibilities open to 



97 

him including touching an enemy port of call, must be treated 
under Prize Law as a vessel, the master of which has already de- 
cided to touch at an enemy port. It must, therefore, be sufficient 
under the law that calling at such a port was at the time of capture 
still conditional but could at any moment lose its alternative char- 
acter and by the captain's final decision become direct steering for 
and touching at the enemy port. For obvious reasons it cannot pos- 
sibly be expected of a belligerent country in such cases to submit 
to the risk of immediate enemy interference and to permit a vessel 
laden with absolute contraband to proceed unmolested on its 
way." (Hackworth, G. H., Digest of International Law, VII, 
49.) 

(4) Navicerts and Malcerts. 

1. "In November of 1939 British representatives announced the 
inauguration of the navicert system for inter-neutral trade between 
the United States and specified European neutral countries. Under 
the system the neutral exporter filled out a form giving particulars 
as to the shipment and consignee, and the form was signed by 
British representatives. It was carried in the same vessel with the 
goods to enable favorable and speedy treatment by the British 
Contraband Control. In discussions with the British Embassy, 
the Department of State took the position that the system could 
only be regarded as a purely voluntary one for the benefit of 
exporters who might desire to take advantage of it. It reserved 
all rights of the United States and its nationals under international 
law and stated that it did not desire to take any position at the 
time with respect to the introduction of the proposed system. The 
Department made it clear that such comments were based upon the 
assumption of the correctness of the following assertions: 

' '1. The proposed Navicert System will in no sense be used to 
interfere in any way with the normal volume of exports of genuine 
neutral character from the United States to any neutral country. 

' '2. The proposed Navicert System will not be used in any way 
to discriminate against the United States and United States ex- 
porters. 

" '3. The granting or rejection of a Navicert shall be conditional 
upon circumstances related solely to the character of the goods 
and conditions in the country of importation and in no respect upon 
conditions related to American exporters or to the United States. 

' '4. Whenever applications for Navicerts are rejected a clear, 
concise statement of the reasons for such rejections shall be given 



98 

to the applicant for the Navicert.' " (Memorandum, Nov. 9, 1939, 
Department of State. Comment in Hackworth, G. H., Digest 
of International Law, VII, 215—6.) 

2. ". . . the 'Navicert' system operates by voluntary application on 
the part of American exporters. No obligation is imposed upon any 
American exporter to apply for or to refrain from applying for a 
'Navicert'. The United States Government is not responsible for 
nor connected with the operation of the system. It has announced 
publicly and has informed the British Government that it reserves 
the right of the United States and its nationals under International 
Law." (The Legal Adviser of the Department of State, Hack- 
worth, to Fred Christoph, January 31, 1940. Hackworth, G. H., 
Digest of International Law, VII, 216.) 

3. "On Jan. 17, 1940 the Minister of Economic Warfare 
(Cross) explained in the House of Commons that 'Over 11,000 
applications for navicerts had been received since the system was 
introduced on November 1 [1939], and applications were coming 
forward at the rate of 500 a day.'" {Times, (London), Jan. 18, 
1940, p. 3, col. 3. Comment in Hackworth, G. H., Digest of Inter- 
national haw, VII, 216.) 

4. "On Feb. 29, 1940 the German Legation at The Hague warn- 
ed neutrals against accepting British navicerts. Similar warnings 
were issued at Berlin and at The Hague on the following days." 
{Times (London), Mar. 1, 1940, p. 8, col. 4. New York Times, 
Mar. 1, 1940, p. 8, col. 6; Ibid., Mar. 2, 1940, p, 4, col: 8; Ibid; 
Mar. 5, 1940, p. 5, col. 4. Comment in Hackworth, G. H., Digest 
of International Law, VII, 216). 

5. A British Order in Council, July 31, 1940, effective August 1, 
1940 stated that Germany had violated the laws of maritime war- 
fare. After providing for the issuance of "ship navicerts" by British 
or allied authorities at British, allied, and neutral ports, this Order 
by way of reprisals declared : 

"2. Any vessel on her way to or from a port through which goods 
might reach or come from enemy territory or the enemy armed 
forces, not being provided with a Ship Navicert valid for the 
voyage on which she is engaged, shall, until the contrary is estab- 
lished, be deemed to be carrying contraband or goods of enemy 
origin or ownership, and shall be liable to seizure as Prize ; provided 
that a vessel, other than a vessel which sailed from or has called 
at an enemy port, shall not be liable to seizure under the provisions 
of this Article unless she sailed from or could have called at a 



99 

port at which she would, if duly qualified, have obtained a Ship 
Navicert." 

"8. Nothing in this Order shall be deemed to confer any immun- 
ity from detention, seizure or condemnation on any vessel or goods 
by reason of being provided with or covered by any form of pass 
or permit." (Statutory Rules and Orders, 1940, no. 1436. Hack- 
worth, G. H., Digest of International Law, VII. 217.) 

6. Further articles from the Order in Council of July 31, 1940: 
"3. — ( 1 ) Goods consigned to any port or place from which they 

might reach enemy territory or the enemy armed forces, and not 
covered by a valid Cargo Navicert or, in the case of goods shipped 
from a British or Allied port, by a valid Export or Transshipment 
License, where such License is required, shall, until the contrary 
is established, be deemed to have an enemy destination. 

"(2) Goods shipped from any port from which goods of enemy 
origin or ownership might have been shipped, and not covered by 
a valid Certificate of Origin and Interest, shall, until the contrary 
is established, be deemed to be of enemy origin or ownership. 

"4. Goods of enemy origin or ownership shall be liable to con- 
demnation. 

''5. Any vessel seized under Article 2 hereof and carrying 
contraband or goods of enemy origin or ownership shall be liable 
to condemnation in respect of such carriage." (Statutory Rules and 
Orders, 1940, no. 1436. Hackworth, G. H., Digest of International 
Law, VII, 141-2.) 

7. "On July 1, 1941 the British Government instituted a system 
of 'mailcerts' for parcels mailed from the United States to various 
European and African countries. The British Ministry of Economic 
W arfare stated that the purpose was to enable the senders of such 
parcels 'to ascertain, in advance of posting whether facilities crm be 
given for their passage through British examination stations.' ' 
(Counselor of Embassy in London, Johnson, to Secretary of State 
Hull, enclosure, July 9, 1941. Comment in Hackworth, G. H., Di- 
gest of International Laic, VII, 216.) 

11. Conclusions. 

Despite the relative scarcity of available documents 
for World War II in regard to contraband, we can 
state as a conclusion that contraband of war still 
remains a valid concept. As methods of warfare 
changed, the general classification of goods as contra- 



100 

band has been expanded and the means of deter- 
mining such goods have been refined, but as long as 
there remains a neutral country in time of war, the 
question of contraband will arise. 

As the concept stands today, the problem of con- 
traband will be found whenever neutral goods are 
shipped aboard a neutral or an enemy ship or when- 
ever enemy goods are found upon a neutral vessel. 
The essential criteria of contraband remain: 1) the 
belligerent character of the goods, and 2) hostile 
destination. 

II. THE CRIMEA CONFERENCE 

(The Department of State Bulletin, Vol. XII, No. 295, Feb. 18, 1945) 

For the past eight days, Winston S. Churchill, 
Prime Minister of Great Britain, Franklin D. Roose- 
velt, President of the United States of America, and 
Marshal J. V. Stalin, Chairman of the Council of 
People's Commissars of the Union of Soviet Socialist 
Republics, have met with the Foreign Secretaries, 
Chiefs of Staff, and other advisors in the Crimea. 

In addition to the three heads of government, the 
following took part in the conference: 

For the United States of America: 

Edward R. Stettinius, Jr., Secretary of State 

Fleet Admiral William D. Leahy, U.S.N., Chief of Staff to 

the President 
Harry L. Hopkins, Special Assistant to the President 

Justice James F. Byrnes, Director, Office of War Mobilization 
and Reconversion 

General of the Army George C. Marshall, U.SA., Chief of 
Staff, U. S. Army 

Fleet Admiral Ernest J. King, U.S.N., Chief of Naval Opera- 
tions and Commander in Chief, U.S. Fleet 

Lieutenant General Brehon B. Somervell, Commanding Gen- 
eral, Army Service Forces 

Vice Admiral Emory S. Land, War Shipping Administrator 



101 

Major General L. S. Kuter, U.S.A., Staff of Commanding 

General, U. S. Army Air Forces 
W. Averell Harriman, Ambassador to the U.S.S.R. 
H. Freeman Matthews, Director, Office of European Affairs, 

State Department 
Alger Hiss, Deputy Director, Office of Special Political Affairs, 

Department of State 
Charles E. Bohlen, Assistant to the Secretary of State together 
with political, military, and technical advisors. 

For the United Kingdom: 

Anthony Eden, Secretary of State for Foreign Affairs 

Lord Leathers, Minister of War Transport 

Sir A. Clark Kerr, H. M. Ambassador at Moscow. 

Sir Alexander Cadogan, Permanent Under Secretary of State 
for Foreign Affairs 

Sir Edward Bridges, Secretary of the War Cabinet 

Field Marshal Sir Alan Brooke, Chief of the Imperial General 
Staff 

Marshal of the Royal Air Force Sir Charles Portal, Chief of 
the Air Staff 

Admiral of the Fleet Sir Andrew Cunningham, First Sea Lord 

General Sir Hastings Ismay, Chief of Staff to the Minister of 
Defense 
together with 

Field Marshal Alexander, Supreme Allied Commander, Medi- 
terranean Theatre 

Field Marshal Wilson, Head of the British Joint Staff Mission 
at Washington 

Admiral Somerville, Joint Staff Mission at Washington together 
with military and diplomatic advisors. 

For the Soviet Union: 

V. M. Molotov, People's Commissar for Foreign Affairs of 

the U.S.S.R. 
Admiral Kuznetsov, People's Commissar for the Navy 
Army General Antonov, Deputy Chief of the General Staff of 

the Red Army 
A. Y. Vyshinski, Deputy People's Commissar for Foreign Affairs 

of the U.S.S.R. 



102 

I. M. Maiski, Deputy People's Commissar of Foreign Affairs 

of the U.S.S.R. 
Marshal of Aviation Khudyakov 
F. T. Gusev, Ambassador in Great Britain 
A. A. Gromyko, Ambassador in U.S.A. 

The following statement is made by the Prime 
Minister of Great Britain, the President of the 
United States of America, and the Chairman of the 
Council of People's Commissars of the Union of 
Soviet Socialist Republics on the results of the 
Crimean Conference : 

The Defeat of Germany 

We have considered and determined the military 
plans of the three allied powers for the final defeat 
of the common enemy. The military staffs of the three 
allied nations have met in daily meetings throughout 
the Conference. These meetings have been most satis- 
factory from every point of view and have resulted 
in closer coordination of the military effort of the 
three allies than ever before. The fullest information 
has been interchanged. The timing, scope and co- 
ordination of new and even more powerful blows to 
be launched by our armies and air forces into the 
heart of Germany from the east, west, north and 
south have been fully agreed and planned in detail. 

Our combined military plans will be made known 
only as we execute them, but we believe that the very 
close-working partnership among the three staffs 
attained at the conference will result in shortening the 
war. Meetings of the three staffs will be continued 
in the future whenever the need arises. 

Nazi Germany is doomed. The German people 
will only make the cost of their defeat heavier to 
themselves by attempting to continue a hopeless re- 
sistance. 



103 
The Occupation and Control of Germany 

We have agreed on common policies and plans for 
enforcing the unconditional surrender terms which 
we shall impose together on Nazi Germany after 
German armed resistance has been finally crushed. 
These terms will not be made known until the final 
defeat of Germany has been accomplished. Under the 
agreed plan, the forces of the three powers will each 
occupy a separate zone of Germany. Coordinated 
administration and control have been provided for 
under the plan through a central control commission 
consisting of the Supreme Commanders of the three 
powers with headquarters in Berlin. It has been 
agreed that France should be invited by the three 
powers, if she should so desire, to take over a zone 
of occupation and to participate as a fourth member 
of the control commission. The limits of the French 
zone will be agreed by the four Governments con- 
cerned through their representatives on the European 
Advisory Commission. 

It is our inflexible purpose to destroy German 
militarism and nazism and to insure that Germany 
will never again be able to disturb the peace of the 
world. We are determined to disarm and disband all 
German armed forces; break up for all time the Ger- 
man General StafT that has repeatedly contrived the 
resurgence of German militarism; remove or destroy 
all German military equipment; eliminate or control 
all German industry that could be used for military 
production; bring all war criminals to just and swift 
punishment and exact reparation in kind for the 
destruction wrought by the Germans; wipe out the 
Nazi party, Nazi laws, organizations and institutions, 
remove all Nazi and militarist influences from pub- 
lic office and from the cultural and economic life of 
the German people; and take in harmony such other 



104 

measures in Germany as may be necessary to the 
future peace and safety of the world. It is not our 
purpose to destroy the people of Germany, but only 
when nazism and militarism have been extirpated 
will there be hope for a decent life for Germans, 
and a place for them in the comity of nations. 

Reparations by Germany 
We have considered the question of the damage 
caused by Germany to the Allied Nations in this war 
and recognized it as just that Germany be obliged 
to make compensation for this damage in kind to the 
greatest extent possible. A commission for the com- 
pensation of damage will be established. The com- 
mission will be instructed to consider the question 
of the extent and methods for compensating damage 
caused by Germany to the Allied countries. The com- 
mission will work in Moscow- 

United Nations Conference 
We are resolved upon the earliest possible estab- 
lishment with our allies of a general international 
organization to maintain peace and security. We be- 
lieve that this is essential, both to prevent aggression 
and to remove the political, economic and social 
causes of war through the close and continuing col- 
laboration of all peace-loving peoples. 

The foundations were laid at Dumbarton Oaks. On 
the important question of voting procedure, however, 
agreement was not there reached. The present con- 
ference has been able to resolve this difficulty. 

We have agreed that a conference of the United 
Nations should be called to meet at San Francisco, 
in the United States, on April 25, 1945, to prepare 
the charter of such an organization, along the lines 
proposed in the informal conversations at Dumbar- 
ton Oaks. 



105 

The Government of China and the Provisional 
Government of France will be immediately consulted 
and invited to sponsor invitations to the conference 
jointly with the Governments of the United States, 
Great Britain and the Union of Soviet Socialist Re- 
publics. As soon as the consultation with China and 
France has been completed, the text of the proposals 
on voting procedure will be made public. 

Declaration on Liberated Europe 

The Premier of the Union of Soviet Socialist 
Republics, the Prime Minister of the United King- 
dom and the President of the United States of Ameri- 
ca have consulted with each other in the common 
interests of the peoples of their countries and those 
of liberated Europe. They jointly declare their mu- 
tual agreement to concert during the temporary 
period of instability in liberated Europe the policies 
of their three Governments in assisting the peoples 
liberated from the domination of Nazi Germany and 
the peoples of the former Axis satellite states of 
Europe to solve by democratic means their pressing 
political and economic problems. 

The establishment of order in Europe and the 
rebuilding of national economic life must be achieved 
by process which will enable the liberated peoples to 
destroy the last vestiges of nazism and fascism and to 
create democratic institutions of their own choice. 
This is a principle of the Atlantic Charter — the right 
of all peoples to choose the form of government under 
which they will live — the restoration of sovereign 
rights and self-government to those peoples who have 
been forcibly deprived of them by the aggressor na- 
tions- 

To foster the conditions in which the liberated 
peoples may exercise these rights, the three Govern- 



106 

ments will jointly assist the people in any European 
liberated state or former Axis satellite state in Eu- 
rope, where in their judgment conditions require 

(A) to establishment conditions of internal peace; 

(B) to carry out emergency measures for the relief 
of distressed peoples; (C) to form interim govern- 
mental authorities broadly representative of all demo- 
cratic elements in the population and pledged to the 
earliest possible establishments through free elections 
of governments responsive to the will of the people; 
and (D) to facilitate where necessary to holding of 
such elections. 

The three Governments will consult the other 
United Nations and provisional authorities or other 
governments in Europe when matters of direct inter- 
est to them are under consideration. 

When, in the opinion of the three Governments, 
conditions in any European liberated state or any 
former Axis satellite state in Europe make such 
action necessary, they will immediately consult to- 
gether on the measures necessary to discharge the 
joint responsibilities set forth in this declaration. 

By this declaration we reaffirm our faith in the 
principles of the Atlantic Charter, our pledge in the 
Declaration by the United Nations and our deter- 
mination to build, in cooperation with other peace- 
loving nations, world order under law, dedicated 
to peace, security, freedom and the general well-being 
of all mankind. 

In issuing this declaration, the three powers ex- 
press the hope that the Provisional Government of 
the French Republic may be associated with them 
in the procedure suggested. 

Poland 
A new situation has been created in Poland as a 
result of her complete liberation by the Red Army. 



107 

This calls for the establishment of a Polish Provision- 
al Government which can be more broadly based 
than was possible before the recent liberation of 
western Poland. The Provisional Government which 
is now functioning in Poland should therefore be 
reorganized on a broader democratic basis with the 
inclusion of democratic leaders from Poland itself 
and from Poles abroad. This new government should 
then be called the Polish Provisional Government of 
National Unity. 

M. Molotoff, Mr. Harriman and- Sir A. Clark 
Kerr are authorized as a commission to consult in the 
first instance in Moscow with members of the present 
Provisional Government and with other Polish 
democratic leaders from w T ithin Poland and from 
abroad, with a view to the reorganization of the 
present Government along the above lines. This 
Polish Provisional Government of National Unity 
shall be pledged to the holding of free and unfettered 
elections as soon as possible on the basis of universal 
suffrage and secret ballot. In these elections all demo- 
cratic and anti-Nazi parties shall have the right to 
take part and to put forward candidates. 

When a Polish Provisional Government of Na- 
tional Unity has been properly formed in conformity 
with the above the Government of the U.S.S.R., 
which now maintains diplomatic relations with the 
present Provisional Government of Poland, and the 
Government of the United Kingdom and the Govern- 
ment of the United States of America will establish 
diplomatic relations with the new Polish Provi- 
sional Government of National Unity and will ex- 
change Ambassadors, by whose reports the respec- 
tive Governments will be kept informed about the 
situation in Poland. 

The three heads of Government consider that the 



108 

eastern frontier of Poland should follow the Curzon 
Line, with digressions from it in some regions of five 
to eight kilometers in favor of Poland. They recog- 
nize that Poland must receive substantial accessions of 
territory in the north and west. They feel that the 
opinion of the new Polish Provisional Government 
of National Unity should be sought in due course on 
the extent of these accessions and that the final de- 
limitation of the western frontier of Poland should 
thereafter await the peace conference. 

We have agreed to recommend to Marshal Tito 
and Dr. Subasitch that the agreement between them 
should be put into effect immediately and that a new 
Government should be formed on the basis of that 
agreement. We also recommend that as soon as the 
new Government has been formed it should declare 
that: 

(1) The anti-Fascist Assembly of National Lib- 
eration [AVNOJ] should be extended to include 
members of the last Yugoslav Parliament [Skup- 
schina] who have not compromised themselves by 
collaboration with the enemy, thus forming a body 
to be known as a temporary Parliament; and, 

(2) Legislative acts passed by the anti-Fascist As- 
sembly of National Liberation will be subject to 
subsequent ratification by a Constituent Assembly. 

There was also a general review of other Balkan 
questions. 

Meetings of Foreign Secretaries 

Throughout the conference, besides the daily 
meetings of the heads of Governments and the For- 
eign Secretaries, separate meetings of the three For- 
eign Secretaries and their advisers have also been 
held daily- 

These meetings have proved of the utmost value 



109 

and the conference agreed that permanent machinery 
should be set up for regular consultation between the 
three Foreign Secretaries. They will, therefore, meet 
as often as may be necessary, probably about every 
three or four months. These meetings will be held 
in rotation in the three capitals, the first meeting 
being held in London, after the United Nations' con- 
ference on world organization. 

Unity for Peace as for War 

Our meeting here in the Crimea has reaffirmed our 
common determination to maintain and strengthen 
in the peace to come that unity of purpose and of 
action which has made victory possible and certain 
for the United Nations in this war. We believe that 
this is a sacred obligation which our Governments 
owe to our peoples and to all the peoples of the 
world. 

Only with the continuing and growing cooperation 
and understanding among our three countries and 
among all the peace-loving nations can the highest 
aspiration of humanity be realized — a secure and last- 
ing peace which will, in the words of the Atlantic 
Charter, "afford assurance that all the men in all the 
lands mav live out their lives in freedom from fear 
and want-" 

Victory in this war and the establishment of the 
proposed international organization will provide the 
greatest opportunty in all history to create in the years 
to come the essential conditions of such a peace. 

Winston S. Churchill 
Franklin D. Roosevelt 
J. Stalin 
February 11, 1945. 



110 

Supplemental Report on Freed Prisoners 

The text of an agreement reached at the Big Three 
conference concerning prisoners liberated by the 
Allies' forces invading Germany follows : 

A comprehensive agreement was reached at the 
Crimea conference providing detailed arrangements 
for the protection, maintenance and repatriation of 
prisoners of war and civilians of the British Com- 
monwealth, Soviet Union and United States liberated 
by the Allied forces now invading Germany. 

Under these arrangements each Ally will provide 
food, clothing, medical attention and other needs 
for the nationals of the others until transport is 
available for their repatriation. In caring for British 
subjects and American citizens, the Soviet Govern- 
ment will be assisted by British and American officers. 
Soviet officers will assist British and American au- 
thorities in their task of caring for Soviet citizens 
liberated by the British and American forces during 
such time as they are on the Continent of Europe or 
in the United Kingdom, awaiting transport to take 
them home. 

We are pledged to give every assistance consistent 
with operational requirements to help to insure that 
all these prisoners of war and civilians are speedily 
repatriated. 

(The Department of State Bulletin, Vol. XII, No. 297, March 4, 1945) 

III. ACT OF CHAPULTEPEC 

Declaration on Reciprocal Assistance and 
American Solidarity 
Whereas : 

1. The peoples of the Americas, animated by a 
profound love of justice, remain sincerely devoted 
to the priciples of international law: 



Ill 

2. It is their desire that such principles, notwith- 
standing the present difficult circumstances, may pre- 
vail with greater force in future international rela- 
tions : 

3- The Inter-American Conferences have repeat- 
edly proclaimed certain fundamental principles, but 
these must be reaffirmed and proclaimed at a time 
when the juridical bases of the community of nations 
are being established. 

4. The new situation in the world makes more 
imperative than ever the union and solidarity of 
the American peoples, for the defense of their rights 
and the maintenance of international peace: 

5. The American states have been incorporating 
in their international law, since 1890, by means of 
conventions, resolutions and declarations, the follow- 
ing principles : 

(a) The proscription of territorial conquest and 
the non-recognition of all acquisitions made by force 
(First International Conference of American States, 
1890). 

(b) The condemnation of intervention by a State 
in the internal or external affairs of another (Seventh 
International Conference of American States, 1933,* 
and Inter-American Conference for the Mainten- 
ance of Peace, 1936). 

(c) The recognition that every war or threat of 
war affects directly or indirectly all civilized peoples, 
and endangers the great principles of liberty and 
justice which constitute the American ideal and the 
standard of its international policy (Inter- American 
Conference for the Maintenance of Peace, 1936). 

(d) The procedure of mutual consultation in order 
to find means of peaceful cooperation in the event of 
war or threat of war between American countries 



112 

(Inter- American Conference for the Maintenance of 
Peace, 1936). 

(e) The recognition that every act susceptible of 
disturbing the peace of America affects each and 
every one of them and justifies the initiation of the 
procedure of consultation (Inter- American Confer- 
ence for the Maintenance of Peace, 1936) . 

(f) That any difference or dispute between the 
American nations, whatever its nature or origin, shall 
be settled by the methods of conciliation, or unre- 
stricted arbitration, or through the operation of inter- 
national justice (Inter- American Conference for the 
Maintenance of Peace, 1936). 

(g) The recognition that respect for the person- 
ality, sovereignty and independence of each Ameri- 
can State constitutes the essence of international order 
sustained by continental solidarity, which historically 
has been expressed and sustained by declarations and 
treaties in force (Eighth International Conference 
of American States, 1938). 

(h) The affirmation that respect for and the faith- 
ful observance of treaties constitutes the indispensa- 
ble rule for the development of peaceful relations 
between States, and treaties can only be revised by 
agreement of the contracting parties (Declaration 
of American Principles, Eighth Internatinoal Con- 
ference of American States, 1938). 

(i) That in case the peace, security or territorial 
integrity of any American republic is threatened by 
acts of any nature that may impair them, they pro- 
claim their common concern and their determination 
to make effective their solidarity, coordinating their 
respective sovereign wills by means of the procedure 
of consultation, using the measures which in each case 
the circumstances may make advisable (Declaration 



113 

of Lima, Eighth International Conference of Ameri- 
can States, 1938). 

(j) That any attempt on the part of a non-Ameri- 
can State against the integrity or inviolability of the 
territory, the sovereignty or the poltical independence 
of an American State shall be considered as an act 
of aggression against all the American States. (Decla- 
ration XV of the Second Meeting of the Ministers 
of Foreign Affairs, Habana, 1940). 

6. The furtherance of these principles, which the 
American States have practiced in order to secure 
peace and solidarity between the nations of the Con- 
tinent constitutes an effective means of contributing 
to the general system of world security and of facili- 
tating its establishment: and 

7. The security and solidarity of the Continent are 
affected to the same extent by an act of aggression 
against any of the American States by a non- American 
State, as by an American State against one or more 
American states. 

PART I 

Declaration 

The Governments Represented at the Inter- 
American Conference on War and Peace 

Declare: 

First. That all sovereign States are juridically equal 
amongst themselves- 

Second. That every state has the right to the re- 
spect of its individuality and independence, on the 
part of the other members of the international com- 
munity. 

Third. That every attack of a State against the in- 
tegrity or the inviolability of territory, or against the 
sovereignty or political independence of an American 
State, shall, conformably to Part III hereof, be con- 



114 

sidered as an act of aggression against the other States 
which sign this declaration. In any case invasion by 
armed forces of one State into the territory of another 
trespassing boundaries established by treaty and de- 
marcated in accordance therewith shall constitute an 
act of aggression. 

Fourth. That in case acts of aggression occur or 
there may be reasons to believe that an aggression is 
being prepared by any other State against the integrity 
and inviolability of territory, or against the sover- 
eignty or political independence of an American 
State, the States signatory to this declaration will con- 
sult amongst themselves in order to agree upon meas- 
ures it may be advisable to take. 

Fifth. That during the war, and until the treaty 
recommended in Part II hereof is concluded, the 
signatories of this declaration recognize that such 
threats and acts of aggression as indicated in para- 
graphs Third and Fourth above constitute an inter- 
ference with the war effort of the United Nations, 
calling for such procedures, within the scope of their 
constitutional powers of a general nature and for war, 
as may be found necessary, including: 

recall of chiefs of diplomatic missions; 

breaking of diplomatic relations; 

breaking of consular relations; 

breaking of postal, telegraphic, telephonic, radio- 
telephonic relations; 

interruptions of economic, commercial and finan- 
cial relations; 

use of armed force to prevent or repel aggression. 

Sixth. That the principles and procedure contained 
in this declaration shall become effective immediate- 
ly, inasmuch as any act of aggression or threat of ag- 
gression during the present state of war interferes 
with the war effort of the United Nations to obtain 



115 

victory. Henceforth, and with the view that the prin- 
ciples and procedure herein stipulated shall conform 
with the constitutional principles of each republic, the 
respective Governments shall take the necessary steps 
to perfect this instrument in order that it shall be in 
force at all times. 

PART II 

Recommendation 

The Inter-American Conference on Problems 

of War and Peace 
Recommends : 

That for the purpose of meeting threats or acts of 
aggression against any American Republic following 
the establishment of peace, the Governments of the 
American Republics should consider the conclusion, 
in accordance with their constitutional processes, of a 
treaty establishing procedures whereby such threats 
or acts may be met by : 

The use, by all or some of the signatories of said 
treaty of any one or more of the following measures : 

recall of chiefs of diplomatic missions; 

breaking of diplomatic relations; 

breaking of consular relations ; 

breaking of postal, telegraphic, telephonic, radio- 
telephonic relations; 

interruption of economic, commercial and financial 
relations; 

use of armed force to prevent or repel aggression. 

PART III 

This declaration and recommendation provide for 
a regional arrangement for dealing with matters re- 
lating to the maintenance of international peace and 
security as are appropriate for regional action in this 
Hemisphere and said arrangements and the activities 
and procedures referred to therein shall be consistent 



116 

with the purposes and principles of the general inter- 
national organization, when established. 

This declaration and recommendation shall be 
known as the ACT OF CHAPULTEPEC. 

IV. FURTHER RESOLUTIONS OF 
INTER-AMERICAN CONFERENCE 

RESOLUTION ON ESTABLISHMENT OF A GENERAL 
INTERNATIONAL ORGANIZATION 

(The Department of State Bulletin, Vol. XII, No. 299, March 18, 1945) 

Whereas : 

The American Republics have at all times demon- 
strated their attachment to the principles of peaceful 
international relationships based on justice and law; 

The tradition of universal cooperation, that has 
consistently inspired the inter-American system into 
which such principles have by now been definitely 
incorporated, has struck deeper roots and gained in 
strength due to the interdependence of the nations of 
the modern world which makes peace indivisible and 
the welfare of one country conditional upon that of 
all the others; 

The Proposals for the Establishment of a Gen- 
eral International Organization formulated at Dum- 
barton Oaks by the representatives of the United 
States of America, the United Kingdom of Great 
Britain and Northern Ireland, the Union of Soviet 
Socialist Republics, and the Republic of China were 
made available on October 9, 1944, to all countries 
for their full study and discussion; 

These Proposals are capable of certain improve- 
ments with a view to perfecting them and to realizing 
with greater assurance the objectives which they 
enunciate; 

The Organization to be created must reflect the 
ideas and hopes of all peace-loving nations partici- 
pating in its creation ; 



117 



In the present inter-American Conference, the Re- 
publics here represented which did not take part in 
the Dumbarton Oaks Conversations have formulated 
a certain number of suggestions which in their opin- 
ion would contribute to the perfecting of the above- 
mentioned Proposals; 

It would undoubtedly be useful for the United 
Nations not represented in this Conference to have 
a synthesis of the views expressed in it, and it would 
also be very valuable if those nations were to com- 
municate to the Governments of the American Re- 
publics here present, prior to the Conference at San 
Francisco, their views regarding the Dumbarton Oaks 
Proposals, 

The Inter- American Conference on Problems 
of War and Peace, Declares : 

1. That the American Republics represented in 
this Conference are determined to cooperate with 
each other and with other peace-loving nations in 
the establishment of a General International Organi- 
zation based upon law, justice, and equity. 

2. That those Republics desire to make their full 
contribution, individually and by common action 
in and through the Inter-American System, effective- 
ly coordinating and harmonizing that system with the 
General International Organization for the realiza- 
tion of the latter's objectives ; 

3. That the Dumbarton Oaks Proposals consti- 
tute a basis for, and a valuable contribution to the 
setting up of, a General Organization which may per- 
mit the achievement of a just peaceful order and the 
welfare of all nations, which the American Republics 
are striving to attain; and 

Resolves : 

1. That the Secretary General of the Conference 



118 

transmit to the states which formulated the Dum- 
barton Oaks Proposals, to the other nations invited 
to the forthcoming Conference at San Francisco, 
and to that Conference itself, this resolution, and the 
report with the documents hereto attached contain- 
ing the views, comments, and suggestions which, in 
the judgment of the American Republics presenting 
them, should be taken into consideration in the formu- 
lation of the definitive Charter of the projected Or- 
ganization, especially the following points regarding 
which a consensus exists among the American Re- 
publics represented in this Conference that did not 
participate in the Dumbarton Oaks Conversations: 

a) The aspiration of universality as an ideal toward 
which the Organization should tend in the future; 

b) The desirability of amplifying and making 
more specific the enumeration of the principles and 
purposes of the Organization; 

c) The desirability of amplifying and making 
more specific the powers of the General Assembly in 
order that its action, as the fully representative organ 
of the international community may be rendered ef- 
fective, harmonizing the powers of the Security 
Council with such amplification; 

d) The desirability of extending the jurisdiction 
and competence of the international tribunal or court 
of justice; 

e) The desirability of creating an international 
agency specially charged with promoting intellectual 
and moral cooperation between nations; 

f) The desirability of preferably solving contro- 
versies and questions of an inter- American character 
in accordance with inter- American methods and pro- 
cedures, in harmnoy with those of the General Inter- 
national Organization; and 

g) The desirability of giving an adequate repre- 



119 

sentation to Latin America in the Security Council. 

2. To express to the other United Nations invited 
to participate in the San Francisco Conference the 
common desire of the American Republics to receive 
from them before that Conference the views, com- 
ments, and suggestions which they on their part may 
deem it convenient to transmit. 

The Governments signatory to the present resolu- 
tion retain full liberty to present and support in the 
San Francisco Conference, as representatives respec- 
tively of sovereign states, ail the view-points which 
they may consider pertinent, many of which may be 
found in the annexed documents. 

RESOLUTION CONCERNING ARGENTINA 

The Inter- American Conference on Problems 
of War and Peace 
Flaving considered the text of the communication 
directed by the Argentine Government to the Pan 
American Union, 

Considering : 

1. That the Conference was called for the purpose 
of taking measures to intensify the war effort of the 
United American Nations against Germany and 
Japan and to seek the strengthening of their political 
and economic sovereignty and their cooperation and 
security; 

2. That the circumstances existing before the meet- 
ing have undergone no change that would have justi- 
fied the Conference in taking steps to re-establish, as 
it earnestly desires to do, the unity of the 21 states in 
the policy of solidarity that has been strengthened 
during the deliberations of the Conference, 

Resolves : 

1. To deplore that the Argentine Nation has up to 
the present time not found it possible to take the steps 



120 

which would permit her participation in the Inter- 
American Conference on Problems of War ,and 
Peace, with the conclusions of which the principle 
of solidarity of the hemisphere against all types of 
aggression is consolidated and extended. 

2. To recognize that the unity of the peoples of 
America is indivisible and that the Argentine Nation 
is and always has been an integral part of the union 
of the American Republics. 

3. To express its desire that the Argentine Nation 
may put herself in a position to express her conformi- 
ty with and adherence to the principles and declara- 
tions which are the results of the Conference of 
Mexico, and which enrich the juridical and political 
heritage of the continent and enlarge the scope of 
American public law, to which on so many occasions 
Argentina herself has made notable contributions. 

4- To reiterate the declaration, established at 
Habana, amplified and invigorated by the Act of 
Chapultepec, and demonstrated by the association of 
the American Republics as members of the United 
Nations, and this Conference holds, that complete 
solidarity and a common policy among the American 
States when faced with threats or acts of aggression 
by any State against an American State are essential 
for the security and peace of the continent. 

5. To declare that the Conference hopes that the 
Argentine Nation will implement a policy of co-op- 
erative action with the other American Natioas, so 
as to identify herself with the common policy which 
these nations are following, and so as to orient her 
own policy so that she may achieve her incorporation 
into the United Nations as a signatory to the joint 
declaration entered into by them. 

6. To declare that the final act of this Conference 
shall be open to adherence by the Argentine Nation, 



121 

always in accordance with the criteria of this resolu- 
tion, and to authorize His Excellency Dr. Ezequiel 
Padilla, President of the Conference, to communicate 
the resolutions of this assembly to the Argentine Gov- 
ernment through the channel of the Pan American 
Union- 

V. SOVIET DENUNCIATION OF PACT WITH JAPAN 

(The Department of State Bulletin, Vol. XII, No. 305, April 29, 1945) 

The American Ambassador at Moscow transmit- 
ted to the Secretary of State, by a telegram dated April 
5, 1945, the following statement, as received from 
the press section of the Foreign Office, regarding 
Soviet denunciation of the U.S.S.R.-Japanese neu- 
trality pact: 

"Today at 3 p.m. People's Commissar for Foreign Affairs of the 
USSR Mr. V. M. Molotov, received the Japanese Ambassador, 
Mr. N. Sato, and made the following statement to him in the 
name of the Soviet Government: 

" 'The neutrality pact between the Soviet Union and Japan 
was concluded on April 13, 1941, that is, before the attack ef 
Germany on the USSR and before the outbreak of war between 
Japan on the one hand and England and the United States on the 
other. Since that time the situation has been basically altered. 
Germany has attacked the USSR, and Japan, the ally of Germany, 
is aiding the latter in its war against the USSR. Furthermore 
Japan is waging war with the USA and England, which are the 
allies of the Soviet Union. 

' 'In these circumstances the neutrality pact between Japan and 
the USSR has lost its sense, and the prolongation of that pact has 
become impossible. 

' 'On the strength of the above and in accordance with Article 
Three of the above mentioned pact, which envisaged the right of 
denunciation one year before the lapse of the five year period of 
operation of the pact, the Soviet Government hereby makes known 
to the Government of Japan its wish to denounce the pact of April 
13, 1941.' 

'The Japanese Ambassador Mr. N. Sato, promised to inform 
the Japanese Government of the statement of the Soviet Govern- 
ment." 



122 

The pact and an accompanying declaration, as 
printed in the Moscow News of April 17, 1941 and 
transmitted to the Department by the American Em- 
bassy, follow: 

Pact on Neutrality Between Union of Soviet 
Socialist Republics and Japan 

The Presidium of the Supreme Soviet of the Union 
of Soviet Socialist Republics and His Majesty the 
Emperor of Japan, guided by a desire to strengthen 
peaceful and friendly relations between the two coun- 
tries, have decided to conclude a pact on neutrality, 
for which purpose they have appointed as their 
Representatives : 

the Presidium of the Supreme Soviet of the Union 
of Soviet Socialist Republics — 

Vyacheslav Mikhailovich Molotov, Chairman of 
the Council of People's Commissars and People's 
Commissar of Foreign Affairs of the Union of Soviet 
Socialist Republics; 

His Majesty the Emperor of Japan — 

Yosuke Matsuoka, Minister of Foreign Affairs, 
Jusanmin, Cavalier of the Order of the Sacred Treas- 
ure of the First Class, and 

Yoshitsugu Tatekawa, Ambassador Extraordinary 
and Plenipotentiary to the Union of Soviet Socialist 
Republics, Lieutenant General, Jusanmin, Cavalier 
of the Order of the Rising Sun of the First Class 
and the Order of the Golden Kite of the Fourth Class, 

who, after an exchange of their credentials, which 
were found in due and proper form, have agreed on 
the following: 

Article One 

Both Contracting Parties undertake to maintain 
peaceful and friendly relations between them and 



123 

mutually respect the territorial integrity and inviola- 
bility of the other Contracting Party. 

Article Two 
Should one of the Contracting Parties become the 
object of hostilities on the part of one or several third 
powers, the other Contracting Party will observe neu- 
trality throughout the duration of the conflict. 

Article Three 

The present Pact comes into force from the day 
of its ratification by both Contracting Parties and 
remains valid for five years. In case neither of the 
Contracting Parties denounces the Pact one year be- 
fore the expiration of the term, it will be considered 
automatically prolonged for the next five years. 

Article Four 

The present Pact is subject to ratification as soon 
as possible. The instruments of ratification shall be 
exchanged in Tokyo, also as soon as possible. 

In confirmation whereof the above-named Repre- 
sentatives have signed the present Pact in two copies, 
drawn up in the Russian and Japanese languages, and 
affixed thereto their seals. 

Done in Moscow on April 13, 1941, which corre- 
sponds to the 13th day of the fourth month of the 
16th year of Showa. 

v. molotov. 

Yosuke Matsuoka. 
Yoshitsugu Tatekawa. 

Declaration 

In conformity with the spirit of the Pact on neu- 
trality concluded on April 13, 1941, between the 
U.S.S.R. and Japan, the Government of the 
U.S.S.R. and the Government of Japan, in the inter- 



124 

est of insuring peaceful and friendly relations between 
the two countries, solemnly declare that the U.S.S.R. 
pledges to respect the territorial integrity and invio- 
lability of Manchoukuo, and Japan pledges to respect 
the territorial integrity and inviolability of the Mon- 
golian People's Republic. 

Moscow, April 13, 1941. 
On behalf of the Government of the U.S.S.R. 

V. Molotov. 
On behalf of the Government of Japan 

Yosuke Matsuoka. 
Yoshitsugu Tatekawa. 

VI. PROCLAMATION OF GERMAN SURRENDER 

(The Department of State Bulletin, Vol. XII, No. 307, May 13, 1945) 

The Allied armies, through sacrifice and devotion 
and with God's help, have wrung from Germany a 
final and unconditional surrender. The western world 
has been freed of the evil forces which for five years 
and longer have imprisoned the bodies and broken the 
lives of millions upon millions of free-born men. 
They have violated their churches, destroyed their 
homes, corrupted their children, and murdered their 
loved ones. Our Armies of Liberation have restored 
freedom to these suffering peoples, whose spirit and 
will the oppressors could never enslave. 

Much remains to be done. The victory won in the 
West must now be won in the East. The whole world 
must be cleansed of the evil from which half the 
world has been freed. United, the peace-loving na- 
tions have demonstrated in the West that their arms 
are stronger by far than the might of dictators or the 
tyranny of military cliques that once called us soft 
and weak. The power of our peoples to defend 
themselves against all enemies will be proved in the 
Pacific war as it has been proved in Europe. 

For the triumph of spirit and of arms which we 



125 

have won, and for its promise to peoples every- 
where who join us in the love of freedom, it is 
fitting that we, as a nation, give thanks to Almighty 
God, who has strengthened us and given us the vic- 
tory. 

Now, Therefore, I, Harry S. Truman, Presi- 
dent of the United States of America, do hereby 
appoint Sunday, May 13, 1945, to be a day of prayer. 

I call upon the people of the United States, what- 
ever their faith, to unite in offering joyful thanks 
to God for the victory we have won and to pray 
that He will support us to the end of our present 
struggle and guide us into the way of peace. 

I also call upon my countrymen to dedicate this 
day of prayer to the memory of those who have given 
their lives to make possible our victory. 

In Witness Whereof, I have hereunto set my 
hand and caused the seal of the United States of 
America to be affixed. 

DONE at the City of Washington this eighth day 

of May, in the year of our Lord 

nineteen hundred and forty-five, 

[SEAL] and of the Independence of the 

United States of America the one 

hundred and sixty-ninth. 

t> < u id -a 4. Harry S. Truman 

By the President: 

Joseph C. Grew 

Acting Secretary of State 

VII. SINKING OF THE "AWA MARU" 

A. EXCHANGE OF COMMUNICATIONS BETWEEN THE 
GOVERNMENTS OF JAPAN AND THE UNITED STATES 

(The Department of State Bulletin, Vol. XII, No. 310, June 3, 1945) 

Reference is made to the Department's press re- 
lease in regard to the sinking by submarine action of 
the Japanese vessel Awa Maru. The Awa Maru had 



126 

been granted Allied safe-conduct by reason of the 
fact that it had carried as part of its cargo relief 
supplies intended for Allied nationals in Japanese 
custody. 

The following communication dated April 26 at 
Tokyo, protesting the sinking of this ship, has been 
received by the Department of State through the 
Swiss Government: 

"One. Japanese Government have received communication of 
United States Government concerning sinking of Awa Maru 
transmitted by note verbale of Swiss Legation Tokyo 17th April, 
stating information has been that about midnight, April first east 
longitude date a ship was sunk by submarine action at a position 
approximately forty miles from the estimated scheduled position of 
Awa Maru. No lights or special illumination were visible at any 
time. The ship sunk almost immediately. One survivor stated that 
the ship was the Awa Maru 

"Two. Prompted by traditional humanitarian principles Japa- 
nese Government complied with repeated earnest requests of United 
States Government for assistance in transporting relief supplies 
to United States arid Allied prisoners of war and internees in 
Japanese hands. During November 1944 Japanese Government 
took delivery of 2,000 odd tons of relief supplies which had been 
sent from United States to Soviet territory in East Asia to forward 
same to Japan proper, Manchukuo, China, and southern areas. United 
States Government guaranteed to Japanese Government by the 
communication transmitted by note verbale of Swiss Legation 
in Toyko on 12th September, 1944 that Allied governments were 
prepared to accord safe conduct to Japanese ships to be employed 
in transport of goods between ports under Japanese administra- 
tion and Soviet port of transshipment, Nakhodka. As notified by 
note verbale addressed to Swiss Legation, Toyko on 21st Novem- 
ber, 1944 Japanese Government, finding it impossible to dispatch 
ships for the particular purpose of transporting the relief supplies 
to China and southern areas, decided to make use of the spaces 
of ships actually plying in these areas employing one ship for 
carrying them to Shanghai and Tsingtao and another to southern 
areas. The Japanese Government understood from above-men- 
tioned communication from United States Government that these 
ships would equally, with the ship to be engaged in the transport 



127 

between Nakhodka and Japan, be guaranteed not to be subjected 
to attack, visit or any interference whatever by United States 
and Allied forces either on their outward or homeward voyages 
and in reply to Japanese Government's request for confirmation of 
this understanding, United States Government through note ver- 
bale of Swiss Legation, Tokyo 13th December, 1944, solemnly 
promised that the two ships selected to transport relief supplies 
will not be subjected to attack, visit or any interference by United 
States and Allied forces either on outward or homeward voyages 
connected with transportation these supplies. Again by their note 
verbale 30th January last, addressed to Swiss Legation, Toyko, 
Japanese Government notified United States Government that 
in accordance with understanding reached between Japanese and 
United States Government to utilize for transport or relief sup- 
plies a ship plying between Japan and southern areas, Japanese 
Government had decided to utilize Awa Maru for same purpose 
and requested United States Government to reconfirm that same 
ship would not be subjected to attack, visit or any interference 
whatever by United States and Allied forces either on outward 
or homeward voyage. United States Government through note 
verbale of Swiss Legation, Tokyo 13th February, fully confirmed 
above-mentioned guarantee. Awa Maru sailed from Mozi 17th 
February and after carrying relief supplies to southern areas 
started on„ homeward voyage. Since the night of first April, how- 
ever, she was not heard of and all efforts for her search proved 
futile. Japanese Government inquired of United States Govern- 
ment 10th April. Japanese Government received United States 
Government's communication referred to in paragraph one above. 
It has now become evident that Awa Maru sunk by a United 
States submarine in straits of Taiwan at midnight on 1st April 
and that 1,000 and several hundreds of her passengers and the 
cargo shared her fate. 

"Three. As stated above United States Government have thrice 
guaranteed absolute safety of voyage of Awa Maru. Japanese 
Government notified United States Government of her routes and 
schedule and these were duly noted by United States Govern- 
ment. She following same routes according to same schedule, wore 
the marks which had been notified to and duly noted by United 
States Government and the marks were illuminated and navi- 
gation lights were lighted at night. That ship was at scheduled 
position at time of sinking is clear also from a communication 
received from her on 1st April immediately before she was sunk. 



128 

Therefore, it cannot but be concluded that she was deliberately 
and wilfully attacked and sunk by United States submarine, re- 
sponsibility for disaster, therefore, unmistakably lies -with United 
States Government. 

"Four. In spite of United States Government's malicious propa- 
ganda distorting fact of the fair treatment accorded by Japanese 
Government to prisoners of war and civilian internees, the Japan- 
ese Government have unflinchingly continued their efforts for 
humanitarian treatment of prisoners of war and internees in their 
hands. The Awa Maru was selected to be employed in such 
humanitarian service in order to cope with United States Gov- 
ernment's ardent desire and in the face of considerable difficulties. 
The United States force in violation of United States Govern- 
ment's solemn promise to give her safe conduct, intercepted her 
on her return voyage and deliberately attacked and sunk her. 
This is the most outrageous act of treachery unparalleled in the 
world history of war. United States Government are to be deemed 
to have abandoned their former desire relating to the treatment 
of United States prisoners of war and civilian internees in Japan- 
ese hands. Japanese Government most emphatically demand that 
United States Government bear the whole responsibility for this 
disgraceful act committeed in violation of the fundamental princi- 
ples of humanity and international law. Japanese Government as 
well as Japanese people, are most profoundly indignant at occur- 
rence of this extremely outrageous incident. They will watch 
United States Government's attitude concerning this matter with 
most serious concern. They do hereby file the strongest protest 
with United States Government and declare that they reserve 
all rights for taking any such measures as may be proved necessary 
to cope with such perfidious act on the part of United States 
Government." 

The United States Government sent the following 
reply, dated May 18, to the Swiss Government for 
transmission to Tokyo, and it is presumed that the 
Japanese Government has now received this reply: 

"The Japanese Government's protest concerning the Awa Maru 
incident has been received by the Government of the United States. 

"As noted in previous communications concerning this incident, 
all the facts and circumstances have not as yet been determined. 
An investigation is now in progress to assemble all relevant in- 
formation and the commander of the American submarine has 



129 

been ordered tried by a general court martial to determine the 
question of primary responsibility for the disaster. In these cir- 
cumstances, therefore, the Government of the United States can- 
not accept, prior to a judicial determination of the question of 
responsibility, the charge of the Japanese Government that respon- 
sibility for the disaster unmistakably lies with the Government 
of the United States. 

"The Government of the United States categorically denies the 
Japanese Government's charge that the ship was deliberately and 
willfully attacked and sunk. It is not the practice of the Govern- 
ment of the United States willfully and deliberately to violate 
arrangements entered into with a. foreign state. The Japanese 
Government may be assured that the Government of the United 
States likewise views this incident with the most serious concern 
and is proceeding expeditiously and objectively to ascertain the 
facts and to determine the question of responsibility. The Govern- 
ment of the United States will take such equitable measures either 
immediately or in the future as the dictates of justice may indicate 
as the result of the investigation and court martial. 

"While some question may exist as to the propriety of the utiliza- 
tion of this ship as a means of evacuating from zones of danger 
large numbers of Japanese nationals, including Government offi- 
cials, the Government of the United States sincerely regrets that 
in these circumstances there was such a heavy loss of life, and 
sympathizes with the families of those who perished in this dis- 
aster. The heavy death toll resulted in part from the refusal of 
survivors to accept life lines thrown to them from the submarine, 
which remained on the scene making every effort to rescue 
survivors. 

"There is no valid connection between this disaster and the 
matter of treatment to be accorded prisoners of war and civilian 
internees in Japanese custody. The Government of the United 
States intends to continue to accord to Japanese nationals in its 
custody the same high standard of care and treatment as hereto- 
fore and expects that there will be no intentional deterioration in 
the treatment of Allied nationals in Japanese custody. The Japa- 
nese Government is hereby put on notice that any retaliatory acts 
against Allied nationals in Japanese custody will be a matter of 
the gravest concern to this Government and any persons issuing 
or executing orders in this connection will be severely dealt with 
at the appropriate time. 

"All the information concerning this disaster which is presently 



130 

available to the American authorities at Washington has already- 
been forwarded to the Government of Switzerland for transmittal 
to the Japanese Government. Additional information will be for- 
warded as it becomes available," 

B. REPORT OF INVESTIGATION 

(The Department of State Bulletin, Vol. XIII, No. 316, July 15, 1945) 

The Government of the United States has now 
completed its investigation of the circumstances sur- 
rounding the sinking by an American submarine of 
the Japanese vessel, Awa Maru, while returning, 
under safe-conduct, from a voyage to Hong Kong, 
Singapore, and other ports to carry supplies for 
Allied prisoners of war and civilian internees in 
Japanese custody. 

The investigation discloses that the Awa Maru was 
substantially complying with ail conditions of the 
safe-conduct agreement. In the circumstances the 
burden of making positive identification was placed 
upon the United States submarine. The investigation 
reveals that the United States was responsible for the 
sinking of the Awa Maru. The Government of the 
United States has acknowledged responsibility to the 
Japanese Government through the Swiss Govern- 
ment in a telegram dated June 29, 1945, and suggested 
that, in view of the complex nature of the question of 
indemnity demanded by the Japanese, this matter be 
deferred until the end of the war. 

On April 11, 1945, the Department of State an- 
nounced that it had been informed by the Navy De- 
partment that the Japanese vessel, Awa Maru, travel- 
ing under Allied safe-conduct had been sunk by sub- 
marine action. 

On May 29, 1945, the Department released the text 
of a Japanese protest dated April 26 as well as the 
text of this Government's reply dated May 18. In 
this reply, this Government notified the Japanese 



131 

Government that an investigation was then in progress 
to assemble all the relevant information on the sink- 
ing and notified .the Japanese Government that the 
United States Government could not accept, prior 
to the judicial determination of the question of re- 
sponsibility, the charge of the Japanese Government 
that responsibility for the disaster lay with the United 
States Government. 

On May 16, 1945 (received May 30), the Japa- 
nese Government formally demanded that the United 
States Government apologize to the Japanese Govern- 
ment for the sinking; punish those responsible; and 
indemnify the Japanese Government for the loss in- 
curred. 

The text of the Japanese statement dated May 16, 
1945, transmitted through the Swiss Government, is 
as follows : 

"With reference to the protest which the Japanese Government 
lodged with the United States Government through the Swiss 
Government under the date of the 26th of April against attacking 
and sinking of the Awa Maru, the Japanese Government while 
reserving all rights not hereby exercised to take any necessary action 
to cope with this violation of a solemn undertaking, make the 
following demands and request the United States Government 
to inform the Japanese Government without delay whether they 
are prepared promptly to comply with the same. Namely (one) that 
the United States Government apologize to the Japanese Govern- 
ment; (two) that the United States Government punish persons 
responsible and inform the Japanese Government thereof; (three) 
that the United States Government pay indemnities for the loss 
of lives of the crew and the passengers for the injury done to the 
survivors and for the loss of the vessel and of the goods which 
were on board. 

"The Japanese Government by their note of 12th April addressed 
to Swiss Minister in Tokyo requested the United States Govern- 
ment to inform them fully of the circumstances in which the Awa 
Maru was attacked and sunk and to take adequate measures for 
the repatriation of the survivors at the earliest possible date. The 
Japanese Government request an early reply." 



132 

The text of this Government's communication of 
June 29 follows: 

"The Japanese Government's further communication dated 
May 16 concerning the sinking of the Awa Maru has been received 
by the United States Government, which makes the following 
responses to the points raised therein: 

"(1) The United States Government, in its communication 
forwarded through the Swiss Government dated April 10 and 
May 18, 1945, has already officially expressed its deep regret that 
this incident has occurred and that there was such a heavy loss 
of life in connection therewith. 

"The official investigation into this disaster has now been con- 
cluded. It has been established that at the time the ship was sunk 
she was proceeding at night in a fog. There is, however, evidence 
that she was showing the prescribed lights. It appears that the ship 
was about eight miles off the course previously announced and was 
about 32 miles ahead of her predicted position. However, the 
difference between the ship's predicted position and the scene of 
the disaster is not considered unreasonable. The Commanding Offi- 
cer of the submarine did not see the Awa Maru prior to or after 
she had been torpedoed, the attack having been made by means 
other than visual, which fact of itself disproves the charge that 
the attack was willful and deliberate. However, since it appears 
that the Awa Maru was complying substantially with the condi- 
tions of the safe-conduct agreement, the burden of establishing 
identity was that of the commander of the American submarine 
and in view of his failure to do so, the United States Government 
acknowledges responsibility for the sinking of the vessel. 

"(2) Disciplinary action is being taken with respect to the com- 
mander of the American submarine concerned. 

"(3) Because of the complex nature of the question of indemnity, 
this aspect of the matter cannot be resolved satisfactorily during the 
period of hostilities. It is suggested, therefore, that the matter of 
indemnity be deferred until the termination of hostilities. The 
Japanese Government may be assured that the United States Gov- 
ernment will be prepared at that time to discuss all phases of the 
question of indemnity and will approach the question with an atti- 
tude of complete fairness and without regard to the political situa- 
tion then existing. 

"The survivor of the sinking, who is now being cared for by 
American authorities, will be repatriated to Japan as soon as 



133 

arrangements are perfected for further exchanges of nationals be- 
tween Japan and the Allies." 

In taking this action the United States Govern- 
ment not only took into consideration the facts as 
determined by the investigation but was also guided 
by the very real necessity of doing everything in its 
power to insure that future shipments of food, cloth- 
ing, and medical supplies to Allied prisoners of war 
and civilian internees in Japanese custody would be 
facilitated by the Japanese Government. 

Ever since the outbreak of the war in the Pacific, 
the Government of the United States with the other 
interested governments has made every effort to main- 
tain a flow of essential relief supplies to Allied in- 
dividuals in Japanese custody to supplement the in- 
adequate supplies being furnished them. During 1942 
and 1943 in connection with the exchange operations 
some relief supplies were sent in. 

In 1944 there were no exchanges. However, the 
United States Government, deeply conscious of its 
responsibility to these unfortunate individuals, ac- 
tively continued negotiations through the Swiss Gov- 
ernment with a view to working out mutually satis- 
factory arrangements for the delivery by the Japanese 
of further relief supplies. These negotiations finally 
resulted in an arrangement whereby, through the 
cooperation of the Soviet authorities, such supplies 
were picked up at Nakhodka by a Japanese vessel. 
This vessel traveled under safe-conduct granted by 
this Government on behalf of itself and the other 
Allied governments. A portion of the shipment was 
distributed to American and other Allied prisoners of 
war and civilian internees in Japan. Subsequently the 
Japanese asked for and received safe-conduct for two 
vessels, one to proceed to Shanghai to carry a portion 
of the remainder of the supplies for prisoners of war 



134 

in that area and the other to proceed to the southern 
areas (Hong Kong, Singapore, etcetera) for a similar 
purpose. The vessel despatched to Shanghai com- 
pleted its voyage. The other vessel, the Awa Maru, 
after carrying supplies for distribution to the southern 
areas, was sunk on its return trip to Japan. 

The United States Government in accepting the 
responsibility for the sinking of the Awa Maru hopes 
that the Japanese Government will be willing to 
accept further shipments of relief supplies for dis- 
tribution to Allied nationals detained by the Japanese. 

C. OFFER OF SHIP TO REPLACE "AWA MARU" 

(Department of State Bulletin, Vol. XIII, No. 320, August 12, 1945) 

In its press release of July 14, 1945, the Depart- 
ment of State made public the text of a telegram 
dated June 29 in reply to a further communication 
from the Japanese Government dated May 16 con- 
cerning the sinking by an American submarine of 
the Japanese vessel Awa Maru while returning, under 
Allied safe-conduct, from a voyage to Hong Kong, 
Singapore, and other ports, on which it carried as 
part of its cargo relief supplies furnished by the 
Allied Governments for Allied prisoners of war and 
civilian internees in Japanese custody. 

This Government's communication of June 29 
acknowledged responsibility for the sinking of the 
vessel and, as regards the Japanese demand for imme- 
diate indemnity, suggested that the matter of in- 
demnity be deferred until the termination of hostili- 
ties, although assurances were given that the United 
States Government would be prepared at that time 
to discuss all phases of that question and would ap- 
proach the matter with an attitude of complete fair- 
ness and without regard to the political situation 
then existing. 



135 

In a further effort to remove any obstacles in the 
way of completing arrangements whereby regular 
and continuous shipments of relief supplies may be 
made to Allied nationals in Japanese custody to sup- 
plement the inadequate supplies now being furnished 
them, the United States Government has now offered 
to transfer to the Japanese Government a ship having 
substantially the same characteristics as those of the 
Awa Maru, the transfer to be conditioned upon the 
agreement by the Japanese Government to employ 
the replacement vessel solely in connection with the 
transporation of relief supplies and mail and the 
movement of persons eligible for repatriation. In 
making this offer to the Japanese Government the 
United States Government stated that the ship is 
being offered not as a present indemnification for the 
Awa Maru but as a replacement for the sunken 
vessel in order that there might be no impediment 
in the way of the Japanese Government in giving 
immediate effect to its previously announced inten- 
tion to continue to facilitate the shipment and dis- 
tribution of relief supplies for Allied nationals. 

The text of this Government's communication of 
July 31 follows: 

"On sixth April 1945 an official Japanese spokesman, according 
to the Tokyo radio, announced to his press conference that the 
Japanese Government planned to send the Awa Maru on further 
voyages in connection with the forwarding and distribution of re- 
lief supplies sent from abroad for the benefit of Allied nationals 
in Japanese custody. Specifically, the spokesman stated that upon 
the completion of her then current voyage the ship would be 
sent to Nakhodka to pick up a further consignment of supplies 
and then would be utilized in distributing those supplies to areas 
outside Japan. From the general tenor of the announcement it 
was assumed the Japanese Government intended to continue to 
utilize the ship in this and other types of humanitarian service. 

"The Allied Governments noted this statement with satisfaction 
as a further indication of a willingness on the part of the Japanese 



136 

Government to cooperate on a continuing basis in facilitating the 
shipment of relief supplies to Allied nationals in Japanese custody 
for whose welfare the Japanese Government under the Geneva 
Prisoners of War Convention has accepted responsibility. The 
Allied Governments interpreted this statement as an expression of 
the intention of the Japanese Government fully to reciprocate the 
observance by the Allied Governments of both the letter and spirit 
of the Geneva Convention. 

"The United States Government realizes that the deplorable 
accidental sinking of the Awa Maru prevented the Japanese Gov- 
ernment from giving immediate effect to its announced intention 
to continue to facilitate the shipment and distribution of relief 
supplies for Allied nationals. In order, therefore, to assist in over- 
coming this difficulty the United States Government makes the 
following offer to the Japanese Government, not as present in- 
demnification for the Awa Maru (the suggestion having previ- 
ously been made that owing to the complex nature of the question 
of indemnity, that matter might be deferred until the termination 
of hostilities) but as a replacement for the Awa Maru in its 
humanitarian service. 

"The United States Government is prepared immediately to 
transfer to the Japanese Government a vessel described below of 
approximately the same size and characteristics as the Awa Maru, 
conditioned upon the express agreement by the Japanese Govern- 
ment to use the vessel so transferred for the following purposes 
and no others : 

"(a) To operate between Japanese-controlled territory and a 
transfer point in or on the Pacific Ocean, to be designated by the 
United States Government, in the repatriation or exchange of 
Japanese and Allied civilians, seriously sick and seriously wounded 
prisoners of war, and surplus protected personnel. 

"(b) To pick up at the Pacific transfer point, either in con- 
junction with the repatriation or exchange of nationals or other- 
wise, relief supplies and mail for Allied nationals in Japanese 
custody and to deliver such supplies and mail to the various areas 
where Allied nationals are located, 

"(c) To transport relief supplies and mail for Japanese na- 
tionals in Allied custody from Japan to the Pacific transfer point. 
The United States Government will undertake the onward trans- 
portation of such supplies and mail from the transfer point ; and 
also that the Japanese Government expressly agrees to the follow- 
ing conditions: 



137 

"(a) The vessel so transferred will at all times be painted 
and marked in a distinguishing manner; she will be fully illumi- 
nated at night, whether under way, at anchor, or at a wharf or 
pier, including searchlights trained upon side and deck markings, 
"(b) As soon as possible, but not less than seven days in ad- 
vance of departure, the Japanese Government will notify the 
Allies of any intended voyage of the vessel, including day and 
hour of departure, speed, course, and destination. While under way 
the vessel will report her position by radio at four-hour intervals. 
Between missions she will not be berthed at a wharf or pier, but 
will be anchored in a harbor as far from shore and from other 
shipping as possible. The Japanese Government will notify the 
Allies as far in advance as possible of the exact location of the 
ship while in waters under Japanese control between voyages, 

"(c) The vessel will be under safe-conduct and safe-guard 
from both the Japanese and the Allied forces at all times and at 
all places during the continuance of hostilities in the present war. 
"The characteristics of the vessel which the United States Gov- 
ernment is prepared to transfer to the Japanese Government for 
the purposes and under the conditions enumerated above are as 
follows : 

Gross tonnage 11,758 

Draft 22 ft. 

Deadweight tonnage 5,379 

Speed 1 7 knots 

Length 520 ft. 

Beam 72 ft. 

Approximate passenger capacity 2,500 

Radius in miles 14,000 

Year built 1944 

"The vessel will be turned over to Japanese control at a point 
in the Pacific Ocean to be designated by the American authorities. 
Every effort will be made to recruit a crew from Japanese seamen 
in Allied custody. The United States Government will inform 
the Japanese Government as to such additional crew members as 
may be required to operate the ship. Such personnel may be sent 
from Japan to the transfer point by Japanese aircraft for which, 
on the outward and return journeys, the Allied Governments will 
be prepared to accord safe-conduct. 

"Reports received by the Allied Governments emphasize the 
urgency of the immediate receipt by Allied prisoners of war and 
civilian internees in the Far East of supplemental food, medicines, 



138 

and clothing in order to prevent unnecessary loss of life and seri- 
ous physical deterioration. It is, therefore, hoped that the Japanese 
Government will give this proposal its immediate attention and 
will convey to the United States Government at an early date the 
Japanese Government's acceptance thereof." 

VIII. CHARTER OF THE UNITED NATIONS 

(The Department of State Bulletin, Vol. XII, No. 313, June 24, 1945) 

We the Peoples of The United Nations 
Determined 

to save succeeding generations from the scourge 
of war, which twice in our lifetime has brought un- 
told sorrow to mankind, and 

to reaffirm faith in fundamental human rights, in 
the dignity and worth of the human person, in the 
equal rights of men and women and of nations large 
and small, and 

to establish conditions under which justice and 
respect for the obligations arising from treaties and 
other sources of international law can be maintained, 
and 

to promote social progress and better standards of 
life in larger freedom, 
And for These Ends 

to practice tolerance and live together in peace 
with one another as good neighbors, and 

to unite our strength to maintain international 
peace and security, and 

to insure, by the acceptance of principles and the 
institution of methods, that armed force shall not be 
used, save in the common interest, and 

to employ international machinery for the promo- 
tion of the economic and social advancement of all 
peoples, 

Have Resolved to Combine Our Efforts to 
Accomplish These Aims 
Accordingly, our respective Governments, through 



139 

representatives assembled in the city of San Francisco, 
who have exhibited their full powers found to be in 
good and due form, have agreed to the present 
Charter of the United Nations and do hereby estab- 
lish an international organization to be known as the 
United Nations. 

Chapter I: Purposes and Principles 

Article 1 

The Purposes of the United Nations are: 

1. To maintain international peace and security, 
and to that end : to take effective collective measures 
for the prevention and removal of threats to the 
peace, and for the suppression of acts of aggression or 
other breaches of the peace, and to bring about by 
peaceful means, and in conformity with the principles 
of justice and international law, adjustment or settle- 
ment of international disputes or situations which 
might lead to a breach of the peace ; 

2. To develop friendly relations among nations 
based on respect for the principle of equal rights and 
self-determination of peoples, and to take other ap- 
propriate measures to strengthen universal peace; 

3. To achieve international cooperation in solving 
international problems of an economic, social, cul- 
tural, or humanitarian character, and in promoting 
and encouraging respect for human rights and for 
fundamental freedoms for all without distinction as 
to race, sex, language, or religion; and 

4. To be a center for harmonizing the actions of 
nations in the attainment of these common ends. 

Article 2 

The Organization and its Members, in pursuit 
of the Purposes stated in Article 1, shall act in accord- 
ance with the following Principles. 



J40 

1. The Organization is based on the principle of 
the sovereign equality of all its Members. 

2. All Members, in order to ensure to all of them 
the rights and benefits resulting from membership, 
shall fulfil in good faith the obligations assumed by 
them in accordance with the present Charter. 

3. All members shall settle their international dis- 
putes by peaceful means in such a manner that inter- 
national peace and security, and justice, are not en- 
dangered. 

4. All Members shall refrain in their international 
relations from the threat or use of force against the 
territorial integrity or political independence of any 
state, or in any other manner inconsistent with the 
Purposes of the United Nations. 

5. All Members shall give the United Nations 
every assistance in any action it takes in accordance 
with the present Charter, and shall refrain from 
giving assistance to any state against which the United 
Nations is taking preventive or enforcement action. 

6. The Organization shall ensure that states which 
are not Members of the United Nations act in accord- 
ance with these Principles so far as may be necessary 
for the maintenance of international peace and se- 
curity. 

7. Nothing contained in the present Charter shall 
authorize the United Nations to intervene in matters 
which are essentially within the domestic jurisdiction 
of any state or shall require the Members to submit 
such matters to settlement under the present Charter; 
but this principle shall not prejudice the application 
of enforcement measures under Chapter VII. 



141 

Chapter II: Membership 

Article 3 

The original Members of the United Nations shall 
be the states which, having participated in the United 
Nations Conference on International Organization 
at San Francisco, or having previously signed the 
Declaration by United Nations of January 1, 1942, 
sign the present Charter and ratify it in accordance 
with Article 110. 

Article 4 

1. Membership in the United Nations is open 
to all other peace-loving states which accepted the 
obligations contained in the present Charter and, 
in the judgment of the Organization, are able and 
willing to carry out these obligations. 

2. The admission of any such state to membership 
in the United Nations will be effected by a decision 
of the General Assembly upon the recommendation 
of the Security Council. 

Article 5 

A Member of the United Nations against which 
preventive or enforcement action has been taken 
by the Security Council may be suspended from 
the exercise of the rights and privileges of mem- 
bership by the General Assembly upon the recom- 
mendation of the Security Council. The exercise 
of these rights and privileges may be restored by 
the Security Council. 

Article 6 

A Member of the United Nations which has per- 
sistently violated the Principles contained in the 
present Charter may be expelled from the Organiza- 
tion by the General Assembly upon the recommenda- 
tion of the Security Council. 



142 

Chapter III: Organs 

Article 7 

1. There are established as the principal organs 
of the United Nations : a General Assembly, a Securi- 
ty Council, an Economic and Social Council, a Trus- 
teeship Council, an International Court of Justice, 
and a Secretariat. 

2. Such subsidiary organs as may be found neces- 
sary may be established in accordance with the pres- 
ent Charter. 

Article 8 

The United Nations shall place no restrictions on 
the eligibility of men and women to participate in 
any capacity and under conditions of equality in its 
principal and subsidiary organs. 

Chapter IV: The General Assembly 

Composition 

Article 9 

1. The General Assembly shall consist of all the 
Members of the United Nations. 

2. Each Member shall have not more than five 
representatives in the General Assembly. 

Functions and Powers 

Article 10 

The General Assembly may discuss any questions 
or any matters within the scope of the present Charter 
or relating to the powers and functions of any organs 
provided for in the present Charter, and, except as 
provided in Article 12, may make recommendations 
to the Members of the United Nations or to the 
Security Council or to both on any such questions 
or matters, 



143 

Article 11 

1. The General Assembly may consider the general 
principles of cooperation in the maintenance of in- 
ternational peace and security, including the princi- 
ples governing disarmament and the regulation of 
armaments, and may make recommendations with 
regard to such principles to the Members or to the 
Security Council or to both. 

2. The General Assembly may discuss any ques- 
tions relating to the maintenance of international 
peace and security brought before it by any Member 
of the United Nations, or by the Security Council, 
or by a state which is not a Member of the United 
Nations in accordance with Article 35, paragraph 2, 
and, except as provided in Article 12, may make 
recommendations with regard to any such questions 
to the state or states concerned or to the Security 
Council or to both. Any such question on which action 
is necessary shall be referred to the Security Council 
by the General Assembly either before or after dis- 
cussion. 

3. The General Assembly may call the attention 
of the Security Council to situations which are likely 
to endanger international peace and security. 

4. The powers of the General Assembly set forth 
in this Article shall not limit the general scope of 
Article 10. 

Article 12 

1. While the Security Council is exercising in 
respect of any dispute or situation the functions 
assigned to it in the present Charter, the General 
Assembly shall not make any recommendation with 
regard to that dispute or situation unless the Security 
Council so requests. 

2. The Secretary-General, with the consent of the 



144 

Security Council, shall notify the General Assembly 
at each session of any matters relative to the main- 
tenance of international peace and security which 
are being dealt with by the Security Council and 
shall similarly notify the General Assembly, or the 
Members of the United Nations if the General 
Assembly is not in session, immediately the Security 
Council ceases to deal with such matters. 

Article 13 

1. The General Assembly shall initiate studies and 
make recommendations for the purpose of: 

a. promoting international cooperation in the 
political field and encouraging the progressive devel- 
opment of international law and its codification; 

b. promoting international cooperation in the eco- 
nomic, social, cultural, educational, and health fields, 
and assisting in the realization of human rights and 
fundamental freedoms for all without distinction as 
to race, sex, language, or religion. 

2. The further responsibilities, functions, and pow- 
ers of the General Assembly with respect to matters 
mentioned in paragraph 1 (b) above are set forth in 
Chapters IX and X. 

Article 14 

Subject to the provisions of Article 12, the General 
Assembly may recommend measures for the peace- 
ful adjustment of any situation, regardless of origin, 
which it deems likely to impair the general welfare 
or friendly relations among nations, including situa- 
tions resulting from a violation of the provisions of 
the present Charter setting forth the Purposes and 
Principles of the United Nations. 

Article 15 
1. The General Assembly shall receive and con- 
sider annual and special reports from the Security 



145 

Council; these reports shall include an account of the 
measures that the Security Council has decided upon 
or taken to maintain international peace and security. 
2. The General Assembly shall receive and con- 
sider reports from the other organs of the United 
Nations. 

Article 16 

The General Assembly shall perform such func- 
tions with respect to the international trusteeship 
system as are assigned to it under Chapters XII and 
XIII, including the approval of the trusteeship 
agreements for areas not designated as strategic. 

Article 17 

1. The General Assembly shall consider and ap- 
prove the budget of the Organization. 

2. The expenses of the Organization shall be borne 
by the Members as apportioned by the General As- 
sembly. 

3. The General Assembly shall consider and ap- 
prove any financial and budgetary arrangements with 
specialized agencies referred to in Article 57 and 
shall examine the administrative budgets of such 
specialized agencies with a view to making recom- 
mendations to the agencies concerned. 

Voting 

Article 18 

1. Each member of the General Assembly shall 
have one vote. 

2. Decisions of the General Assembly on impor- 
tant questions shall be made by a two-thirds majority 
of the members present and voting. These questions 
shall include: recommendations with respect to the 
maintenance of international peace and security, the 



146 

election of the nonpermanent members of the Security 
Council the election of the members of the Economic 
and Social Council, the election of members of the 
Trusteeship Council in accordance with paragraph 1 
(c) of Article 86, the admission of new Members to 
the United Nations, the suspension of the rights and 
privileges of membership, the expulsion of Members, 
questions relating to the operation of the trusteeship 
system, and budgetary questions. 

3. Decisions on other questions, including the de- 
termination of additional categories of questions to 
be decided by a two-thirds majority, shall be made 
by a majority of the members present and voting. 

Article 19 

A Member of the United Nations which is in 
arrears in the payment of its financial contributions 
to the Organization shall have no vote in the General 
Assembly if the amount of its arrears equals or ex- 
ceeds the amount of the contributions due from it for 
the preceding two full years. The General Assembly 
may, nevertheless, permit such a Member to vote if 
it is satisfied that the failure to pay is due to condi- 
tions beyond the control of the Member. 

Procedure 

Article 20 

The General Assembly shall meet in regular annual 
sessions and in such special sessions as occasion may 
require. Special sessions shall be convoked by the 
Secretary-General at the request of the Security 
Council or of a majority of the Members of the 
United Nations. 

Article 21 

The General Assembly shall adopt its own rules of 
procedure. It shall elect its President for each session. 



147 

Article 22 

The General Assembly may establish such sub- 
sidiary organs as it deems necessary for the perform- 
ance of its functions. 

Chapter Y: The Security Council 

Composition 
Article 23 

1. The Security Council shall consist of eleven 
Members of the United Nations. The Republic of 
China, France, the Union of Soviet Socialist Repub- 
lics, the United Kingdom of Great Britain and North- 
ern Ireland, and the United States of America shall 
be permanent members of the Security Council. The 
General Assembly shall elect six other Members of 
the United Nations to be non-permanent members of 
the Security Council, due regard being specially paid, 
in the first instance to the contribution of Members of 
the United Nations to the maintenance of interna- 
tional peace and security and to the other purposes 
of the Organization, and also to equitable geographi- 
cal distribution. 

2. The non-permanent members of the Security 
Council shall be elected for a term of two years. In 
the first election of the non-permanent members, how- 
ever, three shall be chosen for a term of one year. A 
retiring member shall not be eligible for immediate 
re-election. 

3. Each member of the Security Council shall have 
one representative. 

Functions and Powers 

Article 24 

1. In order to ensure prompt and effective action 
by the United Nations, its Members confer on the 



148 

Security Council primary responsibility for the main- 
tenance of international peace and security, and agree 
that in carrying out its duties under this responsibility 
the Security Council acts on their behalf. 

2. In discharging these duties the Security Coun- 
cil shall act in accordance with the Purposes and 
Principles of the United Nations. The specific pow- 
ers granted to the Security Council for the discharge 
of these duties are laid down in Chapters VI, VII, 
VIII, and XII. 

3. The Security Council shall submit annual and, 
when necessary, special reports to the General As- 
sembly for its consideration. 

Article 25 

The Members of the United Nations agree to 
accept and carry out the decisions of the Security 
Council in accordance with the present Charter. 

Article 26 

In order to promote the establishment and main- 
tenance of international peace and security with the 
least diversion for armaments of the world's human 
and economic resources, the Security Council shall 
be responsible for formulating, with the assistance 
of the Military Staff Committee referred to in Article 
47, plans to be submitted to the Members of the 
United Nations for the establishment of a system for 
the regulation of armaments. 

Voting 

Article 27 

1. Each member of the Security Council shall have 
one vote. 

2. Decisions of the Security Council on proce- 
dural matters shall be made by an affirmative vote 
of seven members. 



149 

3. Decisions of the Security Council on all other 
matters shall be made by an affirmative vote of 
seven members including the concurring votes of the 
permanent members; provided that, in decisions 
under Chapter VI, and under paragraph 3 of Article 
52, a party to a dispute shall abstain from voting. 

Procedure 

Article 28 

1. The Security Council shall be so organized 
as to be able to function continuously. Each member 
of the Security Council shall for this purpose be 
represented at all times at the seat of the Organiza- 
tion. 

2. The Security Council shall hold periodic meet- 
ings at which each of its members may, if it so desires, 
be represented by a member of the government or 
by some other specially designated representative. 

3. The Security Council may hold meetings at such 
places other than the seat of the Organization as in 
its judgment will best facilitate its work. 

Article 29 

The Security Council may establish such subsidary 

organs as it deems necessary for the performance of 

its functions. . - 

Article 30 

The Security Council shall adopt its own rules of 

procedure, including the method of selecting its 

President. . 

Article 31 

Any Member of the United Nations which is not a 
member of the Security Council may participate, 
without vote, in the discussion of any question brought 
before the Security Council whenever the latter con- 
siders that the interests of that Member are specially 
affected. 



150 

Article 32 

Any Member of the United Nations which is not 
a member of the Security Council or any State which 
is not a Member of the United Nations, if it is a 
party to a dispute under consideration by the Security 
Council, shall be invited to participate, without vote, 
in the discussion relating to the dispute. The Security 
Council shall lay down such conditions as it deems 
just for the participation of a State which is not a 
Member of the United Nations. 

Chapter VI: Pacific Settlement of Disputes 

Article 33 

1. The parties to any dispute, the continuance of 
which is likely to endanger the maintenance of inter- 
national peace and security, shall, first of all, seek a 
solution by negotiation, inquiry, mediation, concilia- 
tion, arbitration, judicial settlement, resort to regional 
agencies or arrangements, or other peaceful means 
of their own choice. 

2. The Security Council shall, when it deems neces- 
sary, call upon the parties to settle their dispute by 
such means. 

Article 34 

The Security Council may investigate any dispute, 
or any situation which might lead to international 
friction or give rise to a dispute, in order to de- 
termine whether the continuance of the dispute or 
situation is likely to endanger the maintenance of 
international peace and security. 

Article 35 

1. Any Member of the United Nations may bring 
any dispute, or any situation of the nature referred 



151 

to in Article 34, to the attention of the Security Coun- 
cil or of the General Assembly. 

2. A State which is not a Member of the United 
Nations may bring to the attention of the Security 
Council or of the General Assembly any dispute to 
which it is a party if it accepts in advance, for the 
purposes of the dispute, the obligations of pacific set- 
tlement provided in the present Charter. 

3. The proceedings of the General Assembly in 
respect of matters brought to its attention under this 
Article will be subject to the provisions of Articles 
11 and 12. 

Article 36 

1. The Security Council may, at any stage of a dis- 
pute of the nature referred to in Article 33 or of a 
situation of like nature, recommend appropriate pro- 
cedures or methods of adjustment. 

2. The Security Council should take into consid- 
eration any procedures for the settlement of the dis- 
pute which have already been adopted by the parties. 

3. In making recommendations under this Article 
the Security Council should also take into considera- 
tion that legal disputes should as a general rule be 
referred by the parties to the International Court of 
Justice in accordance with the provisions of the Sta- 
tute of the Court. 

Article 37 

1. Should the parties to a dispute of the nature 
referred to in Artcile 33 fail to settle it by the means 
indicated in that Article, they shall refer it to the 
Security Council. 

2. If the Security Council deems that the continu- 
ance of the dispute is in fact likely to endanger the 
maintenance of international peace and security, it 



152 

shall decide whether to take action under Article 36 
or to recommend such terms of settlement as it may 
consider appropriate. 

Article 38 

Without prejudice to the provisions of Articles 
33 to 37, the Security Council may, if all the parties 
to any dispute so request, make recommendations to 
the parties with a view to a pacific settlement of the 
dispute. 

Chapter VII: Action With Respect to Threats to the 
Peace, Breaches of the Peace, and Acts of Aggres- 

Article 39 

The Security Council shall determine the existence 
of any threat to the peace, breach of the peace, or act 
of aggression and shall make recommendations, or 
decide what measures shall be taken in accordance 
with Articles 41 and 42, to maintain or restore inter- 
national peace and security. 

Article 40 

In order to prevent an aggravation of the situa- 
tion, the Security Council may, before making the 
recommendations or deciding upon the measures pro- 
vided for in Article 39, call upon the parties con- 
cerned to comply with such provisional measures as 
it deems necessary or desirable. Such provisional 
measures shall be without prejudice to the rights, 
claims, or position of the parties concerned. The Se- 
curity Council shall duly take account of failure to 
comply with such provisional measures. 

Article 41 

The Security Council may decide what measures 
not involving the use of armed force are to be em- 
ployed to give effect to its decisions, and it may call 



153 

upon the Members of the United Nations to apply 
such measures. These may include complete or partial 
interruption of economic relations and of rail, sea, 
air, postal, telegraphic, radio, and other means of 
communication, and the severance of diplomatic re- 
lations. M . _ :- 

Article 42 

Should the Security Council consider that meas- 
ures provided for in Article 41 would be inadequate 
or have proved to be inadequate, it may take such 
action by air, sea, or land forces as may be necessary 
to maintain or restore international peace and securi- 
ty. Such action may include demonstrations, blockade, 
and other operations by air, sea, or land forces of 
Members of the United Nations. 

Article 43 

1. All Members of the United Nations, in order 
to contribute to the maintenance of international 
peace and security, undertake to make available to 
the Security Council, on its call and in accordance 
with a special agreement or agreements, armed forces, 
assistance, and facilities, including rights of passage, 
necessary for the purpose of maintaining interna- 
tional peace and security. 

2. Such agreement or agreements shall govern the 
numbers and types of forces, their degree of readiness 
and general location, and the nature of the facilities 
and assistance to be provided. 

3. The agreement or agreements shall be nego- 
tiated as soon as possible on the initiative of the Se- 
curity Council. They shall be concluded between the 
Security Council and Members or between the Se- 
curity Council and groups of Members and shall be 
subject to ratification by the signatory states in accord- 
ance with their respective constitutional processes. 



154 

Article 44 

When the Security Council has decided to use 
force it shall, before calling upon a Member not 
represented on it to provide armed forces in ful- 
fillment of the obligations assumed under Article 
43, invite that Member, if the Member so desires, 
to participate in the decisions of the Security Coun- 
cil concerning the employment of contingents of that 
Member's armed forces. 

Article 45 

In order to enable the United Nations to take 
urgent military measures, Members shall hold im- 
mediately available national air-force contingents 
for combined international enforcement action. The 
strength and degree of readiness of these contingents 
and plans for their combined action shall be de- 
termined, within the limits laid down in the special 
agreement or agreements referred to in Article 43, 
by the Security Council with the assistance of the 
Military Staff Committee. 

Article 46 

Plans for the application of armed force shall be 
made by the Security Council with the assistance of 
the Military Staff Committee. 

Article 47 

1. There shall be established a Military Staff Com- 
mittee to advise and assist the Security Council on all 
questions relating to the Security Council's military 
requirements for the maintenance of international 
peace and security, the employment and command 
of forces placed at its disposal, the regulaton of 
armaments, and possible disarmament. 

2. The Military Staff Committee shall consist of 
the Chiefs of Staff of the permanent members of the 



155 

Security Council or their representatives. Any Mem- 
ber of the United Nations not permanently repre- 
sented on the Committee shall be invited by the Com- 
mittee to be associated with it when the efficient dis- 
charge of the Committee's responsibilities requires 
the participation of that Member in its work. 

3. The Military Staff Committee shall be responsi- 
ble under the Security Council for the strategic direc- 
tion of any armed forces placed at the disposal of the 
Security Council. Questions relating to the command 
of such forces shall be worked out subsequently. 

4. The Military Staff Committee, with the authori- 
zation of the Security Council and after consultation 
with appropriate regional agencies, may establish re- 
gional subcommittees. 

Article 48 

1. The action required to carry out the decisions 
of the Security Council for the maintenance of in- 
ternational peace and security shall be taken by all 
the Members of the United Nations or by some of 
them, as the Security Council may determine. 

2. Such decisions shall be carried out by the Mem- 
bers of the United Nations directly and through their 
action in the appropriate international agencies of 
which they are members. 

Article 49. 

The Members of the United Nations shall join in 
affording mutual assistance in carryng out the meas- 
ures decided upon by the Security Council. 

Article 50 

If preventive or enforcement measures against any 
State are taken by the Security Council, any other 
State, whether a Member of the United Nations or 
not, which finds itself confronted with special eco- 



156 

nomic problems arising from the carrying out of 

those measures shall have the right to consult the 

Security Council with regard to a soltuion of those 

problems. „ . ' „ . 

r Article 51 

Nothing in the present Charter shall impair the 
inherent right of individual or collective self-defense 
if an armed attack occurs against a Member of the 
United Nations, until the Security Council has taken 
the measures necessary to maintain international peace 
and security. Measures taken by Members in the exer- 
cise of this right of self-defense shall be immediately 
reported to the Security Council and shall not in any 
way affect the authority and responsibility of the 
Security Council under the present Charter to take 
at any time such action as it deems necessary in order 
to maintain or restore international peace and se- 
curity. 

Chapter VIII: Regional Arrangements 

Article 52 

1. Nothing in the present Charter precludes the 
existence of regional arrangements or agencies for 
dealing with such matters relating to the maintenance 
of international peace and security as are appropriate 
for regional action, provided that such arrangements 
or agencies and their activities are consistent with 
the Purposes and Principles of the United Nations. 

2. The Members of the United Nations entering 
into such arrangements or constituting such agencies 
shall make every effort to achieve pacific settlement 
of local disputes through such regional arrangements 
or by such regional agencies before referring them to 
the Security Council. 

3. The Security Council shall encourage the de- 
velopment of pacific settlement of local disputes 



157 

through such regional arrangements or by such re- 
gional agencies either on the initiative of the States 
concerned or by reference from the Security Council. 
4. This Article in no way impairs the application 
of Articles 34 and 35. 

Article 53 

1. The Security Council shall, where appropriate, 
utilize such regional arrangements or agencies for 
enforcement action under its authority. But no en- 
forcement action shall be taken under regional ar- 
rangements or by regional agencies without the au- 
thorization of the Security Council, with the excep- 
tion of measures against any enemy state, as defined 
in paragraph 2 of this Article, provided for pur- 
suant to Article 107 or in regional arrangements 
directed against renewal of aggressive policy on the 
part of any such state, until such time as the Organi- 
zation may, on request of the Governments concerned, 
be charged with the responsibility for preventing 
further aggression by such a state. 

2. The term enemy state as used in paragraph 1 
of this Article applies to any state which during the 
Second World War has been an enemy of any signa- 
tory of the present Charter. 

Article 54 

The Security Council shall at all times be kept 
fully informed of activities undertaken or in con- 
templation under regional arrangements or by re- 
gional agencies for the maintenance of international 
peace and security. 



158 

Chapter IX: International Economic and 
Social Cooperation 

Article 55 

With a view to the creation of conditions of sta- 
bility and well-being which are necessary for peace- 
ful and friendly relations among nations based on 
respect for the principle of equal rights and self- 
determination of peoples, the United Nations shall 
promote : 

a. higher standards of living, full employment, 
and conditions of economic and social progress and 
development. 

b. solutions of international economic, social, 
health, and related problems; and international cul- 
tural and educational cooperation; and 

c. universal respect for, and observance of, human 
rights and fundamental freedoms for all without dis- 
tinction as to race, sex, language, or religion. 

Article 56 

All Members pledge themselves to take joint and 
separate action in cooperation with the Organization 
for the achievement of the purposes set forth in Arti- 
cle 55. ■ . ■ ..,- 

Article J/ 

1. The various specialized agencies, established 
by intergovernmental agreement and having wide 
international responsibilities, as defined in their basic 
instruments, in economic, social, cultural, education- 
al, health, and related fields, shall be brought into 
relationship with the United Nations in accordance 
with the provisions of Article 63. 

2. Such agencies thus brought into relationship 
with the United Nations are hereinafter referred 
to as specialized agencies. 



159 

Article 58 

The Organization shall make recommendations 
for the coordination of the policies and activities of 
the specialized agencies. 

Article 59 

The Organization shall, where appropriate, initiate 
negotiations among the states concerned for the cre- 
ation of any specialized agencies required for the 
accomplishment of the purposes set forth in Article 

Article 60 

Responsibility for the discharge of the functions 
of the Organization set forth in this Chapter shall 
be vested in the General Assembly and, under the 
authority of the General Assembly, in the Economic 
and Social Council, which shall have for this pur- 
pose the powers set forth in Chapter X. 

Chapter X: The Economic and Social Council 

Composition 

Article 61 

1. The Economic and Social Council shall con- 
sist of eighteen Members of the United Nations 
elected by the General Assembly. 

2. Subject to the provisions of paragraph 3, six 
members of the Economic and Social Council shall 
be elected each year for a term of three years. A re- 
tiring member shall be eligible for immediate reelec- 
tion. 

3. At the first election, eighteen members of the 
Economic and Social Council shall be chosen. The 
term of office of six members so chosen shall expire 
at the end of one year, and of six other members at 



160 

the end of two years, in accordance with arrange- 
ments made by the General Assembly. 

4. Each member of the Economic and Social Coun- 
cil shall have one representative. 

Functions and Powers 
Article 62 

1. The Economic and Social Council may make 
or initiate studies and reports with respect to inter- 
national economic, social, cultural, educational, 
health, and related matters and may make recom- 
mendations with respect to any such matters to the 
General Assembly, to the Members of the United 
Nations, and to the specialized agencies concerned. 

2. It may make recommendations for the purpose 
of promoting respect for and observance of, human 
rights and fundamental freedoms for all. 

3. It may prepare draft conventions for submission 
to the General Assembly, with respect to matters fall- 
ing within its competence. 

4. It may call, in accordance with the rules pre- 
scribed by the United Nations, international confer- 
ences on matters falling within its competence. 

Article 63 

1. The Economic and Social Council may enter 
into agreements with any of the agencies referred to 
in Article 57, defining the terms on which the agency 
concerned shall be brought into relationship with 
the United Nations. Such agreements shall be sub- 
ject to approval by the General Assembly. 

2. It may coordinate the activities of the special- 
ized agencies through consultation with and recom- 
mendations to such agencies and through recommen- 
dations to the General Assembly and to the Members 
of the United Nations. 



161 

Article 64 

1. The Economic and Social Council may take 
appropriate steps to obtain regular reports from the 
specialized agencies. It may make arrangements with 
the Members of the United Nations and with the 
specialized agencies to obtain reports on the steps 
taken to give effect to its own recommendations and 
to recommendations on matters falling within its com- 
petence made by the General Assembly. 

2. It may communicate its observations on these 
reports to the General Assembly. 

Article 65 

The Economic and Social Council may furnish in- 
formation to the Security Council and shall assist 
the Security Council upon its request. 

Article 66 

1. The Economic and Social Council shall per- 
form such functions as fall within its competence in 
connection with the carrying out of the recommenda- 
tions of the General Assembly. 

2. It may, with the approval of the General As- 
sembly, perform services at the request of Members 
of the United Nations and at the request of special- 
ized agencies. 

3. It shall perform such other functions as are 
specified elsewhere in the present Charter or as may 
be assigned to it by the General Assembly. 

Voting 

Article 67 

1. Each member of the Economic and Social Coun- 
cil shall have one vote. 

2. Decisions of the Economic and Social Council 
shall be made by a majority of the members present 
and voting. 



162 

Procedure 

Article 68 
The Economic and Social Council shall set up 
commissions in economic and social fields and for 
the promotion of human rights, and such other com- 
missions as may be required for the performance of 
its functions. 

Article 69 

The Economic and Social Council shall invite any 
Member of the United Nations to participate, with- 
out vote, in its deliberations on any matter of particu- 
lar concern to that Member. 

Article 70 

The Economic and Social Council may make ar- 
rangements for representatives of the specialized 
agencies to participate, without vote, in its delibera- 
tions and in those of the commissions established by 
it, and for its representatives to participate in the 
deliberations of the specialized agencies. 

Article 71 

The Economic and Social Council may make suit- 
able arrangements for consultation with non-govern- 
mental organizations which are concerned with mat- 
ters within its competence. Such arrangements may 
be made with international organizations and, where 
appropriate, with national organizations after con- 
sultation with the Member of the United Nations 

concerned. . ^ 

Article 7Z 

1. The Economic and Social Council shall adopt 
its own rules of procedure, including the method of 
selecting its President. 

2. The Economic and Social Council shall meet 



163 

as required in accordance with its rules, which shall 
include provision for the convening of meetings on 
the request of a majority of its members. 

Chapter XI: Declaration Regarding Non-Self - 
Governing Territories 

Article 73 

Members of the United Nations which have or 
assume responsibilities for the administration of terri- 
tories whose peoples have not yet attained a full meas- 
ure of self-government recognize the principle that 
the interests of the inhabitants of these territories are 
paramount, and accept as a sacred trust the obliga- 
tion to promote to the utmost, w T ithin the system of 
international peace and security established by the 
present Charter, the well-being of the inhabitants of 
these territories, and, to this end : 

a. to ensure, with due respect for the culture of 
the peoples concerned, their political, economic, so- 
cial, and educational advancement, their just treat- 
ment, and their protection against abuses; 

b. to develop self-government, to take due account 
of the political aspirations of the peoples, and to assist 
them in the progressive development of their free 
political institutions, according to the particular cir- 
cumstances of each territory and its peoples and their 
varying stages of advancement; 

c. to further international peace and security; 

d. to promote constructive measures of develop- 
ment, to encourage research, and to cooperate with 
one another and, when and where appropriate, with 
specialized international bodies with a view to the 
practical achievement of the social, economic, and 
scientific purposes set forth in this Article; and 

e. to transmit regularly to the Secretary-General 



164 

for information purposes, subject to such limitation 
as security and constitutional considerations may re- 
quire, statistical and other information of a technical 
nature relating to economic, social, and educational 
conditions in the territories for which they are re- 
spectively responsible other than those territories to 
which Chapters XII and XIII apply. 

Article 74 

Members of the United Nations also agree that 
their policy in respect of the territories to which 
this Chapter applies, no less than in respect of their 
metropolitan areas, must be based on the general 
principle of good-neighborliness, due account being 
taken of the interests and well-being of the rest of the 
world, in social, economic, and commercial matters. 

Chapter XII : International Trusteeship System 

Article 75 

The United Nations shall establish under its au- 
thority an international trusteeship system for the 
administration and supervision of such territories as 
may be placed thereunder by subsequent individual 
agreements. These territories are hereinafter referred 
to as trust territories. 

Article 76 

The basic objectives of the trusteeship system, in 
accordance with the Purposes of the United Nations 
laid down in Article 1 of the present Charter, shall 
be: 

a. to further international peace and security; 

b. to promote the political, economic, social, and 
educational advancement of the inhabitants of the 
trust territories, and their progressive development 
toward self-government or independence as may be 



165 

appropriate to the particular circumstances of each 
territory and its peoples and the freely expressed 
wishes of the peoples concerned, and as may be pro- 
vided by the terms of each trusteeship agreement; 

c. to encourage respect for human rights and for 
fundamental freedoms for all without distinction as 
to race, sex, language, or religion, and to encourage 
recognition of the interdependence of the peoples of 
the world ; and 

d. to insure equal treatment in social, economic, and 
commercial matters for all Members of the United 
Nations and their nationals, and also equal treatment 
for the latter in the administration of justice, without 
prejudice to the attainment of the foregoing objectives 
and subject to the provisions of Article 80. 

Article 77 

1. The trusteeship system shall apply to such ter- 
ritories in the following categories as may be placed 
thereunder by means of trusteeship agreements : 

a. territories now held under mandate; 

b. territories which may be detached from enemy 
States as a result of the Second World War; and 

c. territories voluntarily placed under the system 
by States responsible for their administration. 

2. It will be a matter for subsequent agreement as 
to which territories in the foregoing categories will be 
brought under the trusteeship system and upon what 

Article 78 

The trusteeship system shall not apply to territories 
which have become Members of the United Nations, 
relationship among which shall be based on respect 
for the principle of sovereign equality. 

Article 79 
The terms of trusteeship for each territory to be 



166 

placed under the trusteeship system, including any 
alteration or amendment, shall be agreed upon by 
the States directly concerned, including the manda- 
tory power in the case of territories held under man- 
date by a Member of the United Nations, and shall be 
approved as provided for in Articles 83 and 85. 

Article 80 

1. Except as may be agreed upon in individual 
trusteeship agreements, made under Articles 77, 79, 
and 81, placing each territory under the trusteeship 
system; and until such agreements have been con- 
cluded, nothing in this Chapter shall be construed 
in or of itself to alter in any manner the rights what- 
soever of any States or any peoples or the terms of 
existing international instruments to which Members 
of the United Nations may respectively be parties. 

2. Paragraph 1 of this Article shall not be inter- 
preted as giving grounds for delay or postponement 
of the negotiation and conclusion of agreements for 
placing mandated and other territories under the 
trusteeship system as provided for in Article 11 . 

Article 81 

The trusteeship agreement shall in each case in- 
clude the terms under which the trust territory will 
be administered and designate the authority which 
will exercise the administration of the trust territory. 
Such authority, hereinafter called the administering 
authority, may be one or more States or the Organiza- 
tion itself. . . , - _ 

Article 82 

There may be designated in any trusteeship agree- 
ment, a strategic area or areas which may include 
part or all of the trust territory to which the agree- 
ment applies, without prejudice to any special agree- 
ment or agreements made under Article 43. 



167 

Article S3 

1. All functions of the United Nations relating to 
strategic areas, including the approval of the terms 
of the trusteeship agreements and of their alteration 
or amendment, shall be exercised by the Security 
Council. 

2. The basic objectives set forth in Article 76 shall 
be applicable to the people of each strategic area. 

3. The Security Council shall, subject to the pro- 
visions of the trusteeship agreements and without 
prejudice to security considerations, avail itself of 
the assistance of the Trusteeship Council to perform 
those functions of the United Nations under the 
trusteeship system relating to political, economic, so- 
cial, and educational matters in the strategic areas. 

Article 84 

It shall be the duty of the administering author- 
ity to ensure that the trust territory shall play its 
part in the maintenance of international peace and 
security. To this end the administering authority 
may make use of volunteer forces, facilities, and 
assistance from the trust territory in carrying out 
the obligations towards the Security Council un- 
dertaken in this regard by the administering authori- 
ty, as well as for local defense and the maintenance of 
law and order within the trust territory. 

Article 85 

1. The functions of the United Nations with regard 
to trusteeship agreements for all areas not designated 
as strategic, including the approval of the terms of 
the trusteeship agreements and of their alteration or 
amendment, shall be exercised by the General Assem- 
ble 



168 

2. The Trusteeship Council, operating under the 
authority of the General Assembly, shall assist the 
General Assembly in carrying out these functions. 

Chapter XIII: The Trusteeship Council 

Composition 

Article 86 

1. The Trusteeship Council shall consist of the 
following Members of the United Nations: 

a. those Members administering trust territories; 

b. such of those Members mentioned by name in 
Artcle 23 as are not administering trust territories; 
and 

c. as many other Members elected for three-year 
terms by the General Assembly as may be necessary 
to ensure that the total number of members of the 
Trusteeship Council is equally divided between those 
Members of the United Nations which administer 
trust territories and those which do not. 

2. Each member of the Trusteeship Council shall 
designate one specially qualified person to represent 
it therein. 

Functions and Powers 

Article 87 

The General Assembly and, under its authority, 
the Trusteeship Council, in carrying out their func- 
tions, may: 

a. consider reports submitted by the administering 
authority; 

b. accept petitions and examine them in consulta- 
tion with the administering authority; 

c. provide for periodic visits to the respective trust 



169 

territories at times agreed upon with the administer- 
ing authority; and 

d. take these and other actions in conformity with 
the terms of the trusteeship agreements. 

Article 88 

The Trusteeship Council shall formulate a ques- 
tionnaire on the political, economic, social, and edu- 
cational advancement of the inhabitants of each trust 
territory, and the administering authority for each 
trust territory within the competence of the General 
Assembly shall make an annual report to the General 
Assembly upon the basis of such questionnaire. 

Voting 

Article 89 

1. Each member of the Trusteeship Council shall 
have one vote. 

2. Decisions of the Trusteeship Council shall be 
made by a majority of the members present and vot- 
ing- T^ 

Procedure 

Article 90 

1. The Trusteeship Council shall adopt its own 
rules of procedure, including the method of selecting 
its President. 

2. The Trusteeship Council shall meet as required 
in accordance with its rules, which shall include 
provision for the convening of meetings on the request 
of a majority of its members. 

Article 91 
The Trusteeship Council shall, when appropri- 
ate, avail itself of the assistance of the Economic 
and Social Council and of the specialized agencies 
in regard to matters with which they are respectively 
concerned. 



170 
Chapter XIV: The International Court of Justice 

Article 92 

The International Court of Justice shall be the 
principal judicial organ of the United Nations. It 
shall function in accordance with the annexed Statute, 
which is based upon the Statute of the Permanent 
Court of International Justice and forms an integral 
part of the present Charter. 

Article 93 

1. All Members of the United Nations are ipso 
facto parties to the Statute of the International Court 
of Justice. 

2. A State which is not a Member of the United 
Nations may become a party to the Statute of the 
International Court of Justice on conditions to be 
determined in each case by the General Assembly 
upon the recommendation of the Security Council. 

Article 94 

1. Each Member of the United Nations undertakes 
to comply with the decision of the International 
Court of Justice in any case to which it is a party. 

2. If any party to a case fails to perform the obli- 
gations incumbent upon it under a judgment rendered 
by the Court, the other party may have recourse to 
the Security Council, which may, if it deems neces- 
sary, make recommendations or decide upon measures 
to be taken to give effect to the judgment. 

Article 95 

Nothing in the present Charter shall prevent Mem- 
bers of the United Nations from entrusting the solu- 
tion of their differences to other tribunals by virtue 
of agreements already in existence or which may be 
concluded in the future. 



171 

Article 96 

1. The General Assembly or the Security Council 
may request the International Court of Justice to 
give an advisory opinion on any legal question. 

2. Other organs of the United Nations and special- 
ized agencies, which may at any time be so authorized 
by the General Assembly, may also request advisory 
opinions of the Court on legal questions arising within 
the scope of their activities. 

Chapter XV: The Secretariat 

Article 97 

The Secretariat shall comprise a Secretary-General 
and such staff as the Organization may require. The 
Secretry-General shall be appointed by the General 
Assembly upon the recommendation of the Security 
Council. He shall be the chief administrative officer 
of the Organization. 

Article 98 

The Secretary-General shall act in that capacity in 
all meetings of the General Assembly, of the Security 
Council, of the Economic and Social Council, and of 
the Trusteeship Council, and shall perform such 
other functions as are entrusted to him by these or- 
gans. The Secretary-General shall make an annual 
report to the General Assembly on the work of the 

Organization. *.",'■;>„ 

& Article 99 

The Secretary-General may bring to the attention 
of the Security Council any matter which in his 
opinion may threaten the maintenance of interna- 
tional peace and security. 



172 

Article 100 

1. In the performance of their duties the Secretary- 
General and the staff shall not seek or receive in- 
structions from any government or from any other 
authority external to the Organization. They shall 
refrain from any action which might reflect on their 
position as international officials responsible only to 
the Organization. 

2. Each Member of the United Nations under- 
takes to respect the exclusively international char- 
acter of the responsibilities of the Secretary-General 
and the staff and not to seek to influence them in the 
discharge of their responsibilities. 

Article 101 

1. The staff shall be appointed by the Secretary- 
General under regulations established by the General 
Assembly. 

2. Appropriate staffs shall be permanentnly as- 
signed to the Economic and Social Council, the 
Trusteeship Council, and, as required, to other organs 
of the United Nations. These staffs shall form a part 
of the Secretariat. 

3. The paramount consideration in the employ- 
ment of the staff and in the determination of the con- 
ditions of service shall be the necessity of securing 
the highest standards of efficiency, competence, and 
integrity. Due regard shall be paid to the importance 
of recruiting the staff on as wide a geographical basis 
as possible. 

Chapter XVI: Miscellaneous Provisions 

Article 102 

1. Every treaty and every international agreement 
entered into by any Member of the United Nations 



173 

after the present Charter comes into force shall as 
soon as possible be registered with the Secretariat 
and published by it. 

2. No party to any such treaty or international 
agreement which has not been registered in accord- 
ance with the provisions of paragraph 1 of this 
Article may invoke that treaty or agreement before 
any organ of the United Nations. 

Article 103 

In the event of a conflict between the obligations 
of the Members of the United Nations under the 
present Charter and their obligations under any 
other international agreement, their obligations under 
the present Charter shall prevail. 

Article 104 

The Organization shall enjoy in the territory of 
each of its Members such legal capacity as may be 
necessary for the exercise of its functions and the 
fulfillment of its purposes. 

Article 105 

1. The Organization shall enjoy in the territory 
of each of its Members such privileges and immuni- 
ties as are necessary for the fulfillment of its purposes. 

2. Representatives of the Members of the United 
Nations and officials of the Organization shall simi- 
larly enjoy such privileges and immunities as are 
necessary for the independent exercise of their func- 
tions in connection with the Organization. 

3. The General Assembly may make recommen- 
dations with a view to determining the details of 
the application of paragraphs 1 and 2 of this Article 
or may propose conventions to the Members of the 
United Nations for this purpose. 



174 

Chapter XVII: Transitional Security Arrangements 

Article 106 

Pending the coming into force of such special 
agreements referred to in Article 43 as in the opinion 
of the Security Council enable it to begin the exercise 
of its responsibilities under Article 42, the parties to 
the Four-Nation Declaration, signed at Moscow, 
October 30, 1943, and France, shall, in accordance 
with the provisions of paragraph 5 of the Declaration, 
consult with one another and as occasion requires with 
other Members of the United Nations with a view 
to such joint action on behalf of the Organization as 
may be necessary for the purpose of maintaining in- 
ternational peace and security. 

Article 107 

Nothing in the present Charter shall invalidate 
or preclude action, in relation to any state which 
during the Second World War has been an enemy of 
any signatory to the present Charter, taken or author- 
ized as a result of that war by the Governments hav- 
ing responsibility for such action. 

Chapter XVIII: Amendments 

Article 108 

Amendments to the present Charter shall come 
into force for all Members of the United Nations 
when they have been adopted by a vote of two thirds 
of the members of the General Assembly and rati- 
fied in accordance with their respective constitutional 
processes by two thirds of the Members of the United 
Nations, including all the permanent members of the 
Security Council. 



175 

Article 109 

1. A General Conference of the Members of the 
United Nations for the purpose of reviewing the 
present Charter may be held at a date and place to 
be fixed by a two-thirds vote of the members of the 
General Assembly and by a vote of any seven mem- 
bers of the Security Council. Each Member of the 
United Nations shall have one vote in the conference. 

2. Any alteration of the present Charter recom- 
mended by a two-thirds vote of the conference shall 
take effect when ratified in accordance with their 
respective constitutional processes by two thirds of 
the Members of the United Nations including all 
the permanent members of the Security Council. 

3. If such a conference has not been held before 
the tenth annual session of the General Assembly fol- 
lowing the coming into force of the present Charter, 
the proposal to call such a conference shall be placed 
on the agenda of that session of the General Assembly, 
and the conference shall be held if so decided by a 
majority vote of the members of the General Assem- 
bly and by a vote of any seven members of the Securi- 
ty Council. 

Chapter XIX: Ratification and Signature 

Article 110 

1. The present Charter shall be ratified by the 
signatory States in accordance with their respective 
constitutional processes. 

2. The ratifications shall be deposited with the 
Government of the United States of America, which 
shall notify all the signatory States of each deposit 
as well as the Secretary-General of the Organization 
when he has been appointed. 



176 

3. The present Charter shall come into force upon 
the deposit of ratifications by the Republic of China, 
France, the Union of Soviet Socialist Republics, the 
United Kingdom of Great Britain and Northern 
Ireland, and the United States of America, and by a 
majority of the other signatory States. A protocol of 
the ratifications deposited shall thereupon be drawn 
up by the Government of the United States of Ameri- 
ca which shall communicate copies thereof to all the 
signatory States. 

4. The States signatory to the present Charter 
which ratify it after it has come into force will be- 
come original Members of the United Nations on the 
date of the deposit of their respective ratifications. 

Article 111 

The present Charter, of which the Chinese, French, 
Russian, English, and Spanish texts are equally au- 
thentic, shall remain deposited in the archives of the 
Government of the United States of America. Duly 
certified copies thereof shall be transmitted by that 
Government to the Governments of the other signa- 
tory States. 

In FAITH WHEREOF the representatives of the Gov- 
ernments of the United Nations have signed the pres- 
ent Charter. 

DONE at the city of San Francisco the twenty-sixth 
day of June, one thousand nine hundred and forty- 
five. 

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 

Article 1 

THE INTERNATIONAL COURT OF JUS- 
TICE established by the Charter of the United 
Nations as the principal judicial organ of the United 
Nations shall be constituted and shall function in 
accordance with the provisions of the present Statute. 



177 
Chapter I: Organization of the Court 

Article 2 

The Court shall be composed of a body of inde- 
pendent judges, elected regardless of their nationality 
from among persons of high moral character, who 
posses the qualifications required in their respective 
countries for appointment to the highest judicial offi- 
ces or are juris-consults of recognized competence in 
international law. 

Article 3 

1. The Court shall consist of fifteen members, no 
two of whom may be nationals of the same State. 

2. A person who for the purposes of membership 
in the Court could be regarded as a national of more 
than one State shall be deemed to be a national of 
the one in which he ordinarily exercises civil and 
political rights. 

Article 4 

1. The members of the Court shall be elected by 
the General Assembly and by the Security Council 
from a list of persons nominated by the national 
groups in the Permanent Court of Arbitration, in 
accordance with the following provisions. 

2. In the case of Members of the United Nations 
not represented in the Permanent Court of Arbi- 
tration, candidates shall be nominated by national 
groups appointed for this purpose by their govern- 
ments under the same conditions as those prescribed 
for members of the Permanent Court of Arbitration 
by Article 44 of the Convention of The Hague of 
1907 for the pacific settlement of international dis- 
putes. 

3. The conditions under which a state which is a 
party to the present Statute but is not a Member of the 



178 

United Nations may participate in electing the mem- 
bers of the Court shall, in the absence of a special 
agreement, be laid down by the General Assembly 
upon recommendation of the Security Council. 

Article 5 

1. At least three months before the date of the 
election, the Secretary-General of the United Na- 
tions shall address a written request to the members 
of the Permanent Court of Arbitration belonging to 
the states which are parties to the present Statute, and 
to the members of the national groups appointed 
under Article 4, paragraph 2, inviting them to under- 
take, within a given time, by national groups, the 
nomination of persons in a position to accept the 
duties of a member of the Court. 

2. No group may nominate more than four per- 
sons, not more than two of whom shall be of their 
own nationality. In no case may the number of 
candidates nominated by a group be more than dou- 
ble the number of seats to be filled. 

Article 6 

Before making these nominations, each national 
group is recommended to consult its highest court 
of justice, its legal faculties and schools of law, and 
its national academies and national sections of inter- 
national academies devoted to the study of law. 

Article 7 

1. The Secretary-General shall prepare a list in 
alphabetical order of all the persons thus nominated. 
Save as provided in Article 12, paragraph 2, these 
shall be the only persons eligible. 

2. The Secretary-General shall submit this list to 
the General Assembly and to the Security Council. 



179 

Article 8 

The General Assembly and the Security Council 
shall proceed independently of one another to elect 
the members of the Court. 

Article 9 

At every election, the electors shall bear in mind 
not only that the persons to be elected should in- 
dividually possess the qualifications required, but 
also that in the body as a whole the representation 
of the main forms of civilization and of the principal 
legal systems of the world should be assured. 

Article 10 

1. Those candidates who obtain an absolute ma- 
jority of votes in the General Assembly and in the 
Security Council shall be considered as elected. 

2. Any vote of the Security Council, whether for 
the election of judges or for the appointment of 
members of the conference envisaged in Article 12, 
shall be taken without any distinction between per- 
manent and non-permanent members of the Security 
Council. 

3. In the event of more than one national of the 
same state obtaining an absolute majority of the 
votes both of the General Assembly and of the Se- 
curity Council, the eldest of these only shall be con- 
sidered as elected. 

Article 11 

If, after the first meeting held for the purpose of 
the election, one or more seats remain to be filled, a 
second and, if necessary, a third meeting shall take 
place. 

Article 12 

1. If, after the third meeting, one or more seats 
shall remain unfilled, a joint conference consisting 



180 

of six members, three appointed by the General As- 
sembly and three by the Security Council, may be 
formed at any time at the request of either the Gen- 
eral Assembly or the Security Council, for the pur- 
pose of choosing by the vote of an absolute majority 
one name for each seat still vacant, to submit to the 
General Assembly and the Security Council for their 
respective acceptance. 

2. If the joint conference is unanimously agreed 
upon any person who fulfils the required conditions, 
he may be included in its list, even though he was not 
included in the list of nominations referred to in 
Article 7. 

3. If the joint conference is satisfied that it will not 
be successful in procuring an election, those members 
of the Court who have already been elected shall, 
within a period to be fixed by the Security Council, 
proceed to fill the vacant seats by selection from 
among those candidates who have obtained votes 
in the General Assembly or in the Security Council. 

4. In the event of an equality of votes among the 
judges, the eldest judge shall have a casting vote. 

Article 13 

1. The members of the Court shall be elected for 
nine years and may be reelected; provided, however, 
that of the judges elected at the first election, the 
terms of five judges shall expire at the end of three 
years and the terms of five more judges shall expire 
at the end of six years. 

2. The judges whose terms are to expire at the 
end of the above-mentioned initial periods of three 
and six years shall be chosen by lot to be drawn by 
the Secretary-General immediately after the first 
election has been completed. 

3. The members of the Court shall continue to 
discharge their duties until their places have been 



181 

filled. Though replaced, they shall finish any cases 
which they may have begun. 

4. In the case of the resignation of a member of 
the Court, the resignation shall be addressed to the 
President of the Court for transmission to the- Secre- 
tary-General. This last notification makes the place 
vacant. 

Article 14 

Vacancies shall be filled by the same method as 
that laid down for the first election, subject to the 
following provision: the Secretary-General shall, 
within one month of the occurrence of the vacancy, 
proceed to issue the invitations provided for in 
Article 5, and the date of the election shall be fixed 
by the Security Council. 

Article 15 

A member of the Court elected to replace a mem- 
ber whose term of office has not expired shall hold 
office for the remainder of his predecessor's term. 

Article 16 

1. No member of the Court may exercise any 
political or administrative function, or engage in 
any other occupation of a professional nature. 

2. Any doubt on this point shall be settled by the 
decision of the Court. 

Article 17 

1. No member of the Court may act as agent, 
counsel, or advocate in any case. 

2. No member may participate in the decision of 
any case in which he has previously taken part as 
agent, counsel, or advocate for one of the parties, or 
as a member of a national or international court, or 
of a commission of inquiry or international court, 



182 

or of a commission of inquiry, or in any other ca- 
pacity. 

3. Any doubt on this point shall be settled by the 
decision of the Court. 

Article 18 

1. No member of the Court can be dismissed unless, 
in the unanimous opinion of the other members, he 
has ceased to fulfil the required conditions. 

2. Formal notification thereof shall be made to the 
Secretary-General by the Registrar. 

3. This notifiaction makes the place vacant. 

Article 19 

The members of the Court, when engaged on the 
business of the Court, shall enjoy diplomatic privi- 
leges and immunities. 

Article 20 

Every member of the Court shall, before taking 
up his duties, make a solemn demlaration in open 
court that he will exercise his powers impartially 
and conscientiously. 

Article 21 

1. The Court shall elect its President and Vice- 
President for three years; they may be reelected. 

2. The Court shall appoint its Registrar and may 
provide for the appointment of such other officers as 
may be necessary. 

Article 22 

1. The seat of the Court shall be established at 
The Hague. This, however, shall not prevent the 
Court from sitting and exercising its functions else- 
where whenever the Court considers it desirable. 

2. The President and the Registrar shall reside at 
the seat of the Court. 



183 

Article 23 

1. The Court shall remain permanently in session, 
except during the judicial vacations, the dates and 
duration of which shall be fixed by the Court. 

2. Members of the Court are entitled to periodic 
leave, the dates and duration of which shall be fixed 
by the Court, having in mind the distance between 
The Hague and the home of each judge. 

3. Members of the Court shall be bound, unless 
they are on leave or prevented from attending by 
illness or other serious reasons duly explained to the 
President, to hold themselves permanently at the dis- 
posal of the Court. 

Article 24 

1. If, for some special reason, a member of the 
Court considers that he should not take part in the 
decision of a particular case, he shall so inform the 
President. 

2. If the President considers that for some special 
reason one of the members of the Court should not 
sit in a particular case, he shall give him notice ac- 
cordingly. 

3. If in any such case the member of the Court 
and the President disagree, the matter shall be set- 
led by the decision of the Court. 

Article 25 

1. The full Court shall sit except when it is ex- 
pressly provided otherwise in the present Statute. 

2. Subject to the condition that the number of 
judges available to constitute the Court is not thereby 
reduced below eleven, the Rules of the Court may 
provide for allowing one or more judges, according 
to circumstances and in rotation, to be dispensed from 
sitting. 



184 

3. A quorum of nine judges shall suffice to consti- 
tute the Court. 

Article 26 

1. The Court may from time to time form one 
or more chambers, composed of three or more judges 
as the Court may determine, for dealing with par- 
ticular categories of cases; for example, labor cases 
and cases relating to transit and communications. 

2. The Court may at any time form a chamber for 
dealing with a particular case. The number of judges 
to constitute such a chamber shall be determined by 
the Court with the approval of the parties. 

2. Cases shall be heard and determined by the 
chambers provided for in this Article if the parties 
so request. 

Article 27 

A judgment given by any of the chambers pro- 
vided for in Articles 26 and 29 shall be considered 
as rendered by the Court. 

Article 28 

The chambers provided for in Articles 26 and 29 
may, with the consent of the parties, sit and exercise 
their functions elsewhere than at The Hague. 

Article 29 

With a view to the speedy despatch of business, 
the Court shall form annually a chamber composed 
of five judges which, at the request of the parties, may 
hear and determine cases by summary procedure. In 
addition, two judges shall be selected for the purpose 
of replacing judges who find it impossible to sit. 

Article 30 
1. The Court shall frame rules for carrying out 
its functions. In particular, it shall lay down rules 
of procedure. 



185 

2. The Rules of the Court may provide for assessors 
to sit with the Court or with any of its chambers, 
without the right to vote. 

Article 31 

1. Judges of the nationality of each of the parties 
shall retain their right to sit in the case before the 
Court. 

2. If the Court includes upon the Bench a judge 
of the nationality of one of the parties, any other 
party may choose a person to sit as judge. Such per- 
son shall be chosen preferably from among those 
persons who have been nominated as candidates as 
provided in Articles 4 and 5. 

3. If the Court includes upon the Bench no judge 
of the nationality of the parties, each of these parties 
may proceed to choose a judge as provided in para- 
graph 2 of this Article. 

4. The provisions of this Article shall apply to 
the case of Articles 26 and 29. In such cases, the 
President shall request one or, if necessary, two of 
the members of the Court forming the chamber to 
give place to the members of the Court of the nation- 
ality of the parties concerned, and, failing such, or 
if they are unable to be present, to the judges specially 
chosen by the parties. 

5. Should there be several parties in the same 
interest, they shall, for the purpose of the preced- 
ing provisions, be reckoned as one party only. Any 
doubt upon this point shall be settled by the decision 
of the Court. 

6. Judges chosen as laid down in paragraphs 2, 3, 
and 4 of this Article shall fulfil the conditions re- 
quired by Articles 2, 17 (paragraph 2) , 20, and 24 of 
the present Statute. They shall take part in the de- 
cision on terms of complete equality with their col- 
leagues. 



186 

Article 32 

1. Each member of the Court shall receive an 
annual salary. 

2. The President shall receive a special annual al- 
lowance. 

3. The Vice-President shall receive a special al- 
lowance for every day on which he acts as President. 

4. The judges chosen under Article 31, other than 
members of the Court, shall receive compensation 
for each day on which they exercise their functions. 

5. These salaries, allowances, and compensation 
shall be fixed by the General Assembly. They may not 
be decreased during the term of office. 

6. The salary of the Registrar shall be fixed by the 
General Assembly on the proposal of the Court. 

7. Regulations made by the General Assembly 
shall fix the conditions under which retirement pen- 
sions may be given to members of the Court and to 
the Registrar, and the conditions under which mem- 
bers of the Court and the Registrar shall have their 
traveling expenses refunded. 

8. The above salaries, allowances, and compensa- 
tion shall be free of all taxation. 

Article 33 

The expenses of the Court shall be borne by the 
United Nations in such a manner as shall be decided 
by the General Assembly. 

Chapter II : Competence of the Court 

Article 34 

1. Only States may be parties in cases before the 
Court. 

2. The Court, subject to and in conformity with its 
Rules, may request of public international organiza- 



187 

tions information relevant to cases before it, and 
shall receive such information presented by such 
organizations on their own initiative. 

3. Whenever the construction of the constituent in- 
strument of a public international organization or of 
an international convention adopted thereunder is in 
question in a case before the Court, the Registrar 
shall so notify the public international organization 
concerned and shall communicate to it copies of all 
the written proceedings. 

Article 35 

1. The Court shall be open to the States parties to 
the present Statute. 

2. The conditions under which the Court shall be 
open to other States shall, subject to the special 
provisions contained in treaties in force, be laid down 
by the Security Council, but in no case shall such 
conditions place the parties in a position of inequality 
before the Court. 

3. When a State which is not a Member of the 
United Nations is a party to a case, the Court shall 
fix the amount which that party is to contribute 
toward the expenses of the Court. This provision 
shall not apply if such State is bearing a share of the 
expenses of the Court. 

Article 36 

1. The jurisdiction of the Court comprises all cases 
which the parties refer to it and all matters specially 
provided for in the Charter of the United Nations 
or in treaties and conventions in force. 

2. The States parties to the present Statute may at 
any time declare that they recognize as compulsory 
ipso facto and without special agreement, in relation 
to any other State accepting the same obligation, the 



188 

jurisdiction of the Court in all legal disputes con- 
cerning: 

a. the interpretation of a treaty; 

b. any question of international law; 

c. the existence of any fact which, if established, 
would constitute a breach of an international obliga- 
tion; 

d. the nature or extent of the reparation to be made 
for the breach of an international obligation. 

3. The declarations referred to above may be made 
unconditionally or on condition of reciprocity on the 
part of several or certain States, or for a certain time. 

4. Such declarations shall be deposited with the 
Secretary-General of the United Nations, who shall 
transmit copies thereof to the parties to the Statute 
and to the Registrar of the Court. 

5. Declarations made under Article 36 of the 
Statute of the Permanent Court of International Jus- 
tice and which are still in force shall be deemed, as 
between the parties to the present Statute, to be ac- 
ceptances of the compulsory jurisdiction of the Inter- 
national Court of Justice for the period which they 
still have to run and in accordance with their terms. 

6. In the event of a dispute as to whether the Court 
has jurisdiction, the matter shall be settled by the 
decision of the Court. 

Article 37 

Whenever a treaty or convention in force provides 
for reference of a matter to a tribunal to have been 
instituted by the League of Nations, or to the Per- 
manent Court of International Justice, the matter 
shall, as between the parties to the present Statute, 
be referred to the International Court of Justice. 

Article 38 
1. The Court, whose function is to decide in ac- 



189 

cordance with international law such disputes as are 
submitted to it, shall apply: 

a. international conventions, whether general or 
particular, establishing rules expressly recognized by 
the contesting states; 

b. international custom, as evidence of a general 
practice adopted as law; 

c. the general principles of law recognized by 
civilized nations; 

d. subject to the provisions of Article 59, judicial 
decisions and the teachings of the most highly quali- 
fied publicists of the various nations, as subsidiary 
means for the determination of rules of law. 

2. This provision shall not prejudice the power of 
the Court to decide a case ex aequo et bono, if the 
parties agree thereto. 

Chapter III: Procedure 

Article 39 

1. The official languages of the Court shall be 
French and English. If the parties agree that the 
case shall be conducted in French, the judgment 
shall be delivered in French. If the parties agree that 
the case shall be conducted in English, the judgment 
shall be delivered in English. 

2. In the absence of an agreement as to which 
language shall be employed, each party may, in the 
pleadings, use the language which it prefers; the 
decision of the Court shall be given in French and 
English. In this case the Court shall at the same time 
determine which of the two texts shall be considered 
as authoritative. 

3. The Court shall, at the request of any party, 
authorize a language other than French or English 
to be used by that party. 



190 

Article 40 

1. Cases are brought before the Court, as the case 
may be, either by the notification of the special agree- 
ment or by a written application addressed to the 
Registrar. In either case the subject of the dispute 
and the parties shall be indicated. 

2. The Registrar shall forthwith communicate the 
application to all concerned. 

3. He shall also notify the Members of the United 
Nations through the Secretary-General, and also 
any other states entitled to appear before the Court. 

Article 41 

1. The Court shall have the power to indicate, 
if it considers that circumstances so require, any 
provisional measures which ought to be taken to 
preserve the respective rights of either party. 

2. Pending the final decision, notice of the meas- 
ures suggested shall forthwith be given to the parties 
and to the Security Council. 

Article 42 

1. The parties shall be represented by agents. 

2. They may have the assistance of counsel or 
advocates before the Court. 

3. The agents, counsel, and advocates of parties 
before the Court shall enjoy the privileges and im- 
munities necessary to the independent exercise of 
their duties. 

Article 43 

1. The procedure shall consist of two parts: writ- 
ten and oral. 

2. The written proceedings shall consist of the com- 
munication to the Court and to the parties of mem- 
orials, counter-memorials and, if necessary, replies; 
also all papers and documents in support. 



191 

3. These communications shall be made through 
the Registrar, in the order and within the time fixed 
by the Court. 

4. A certified copy of every document produced 
by one party shall be communicated to the other 
party. 

5. The oral proceedings shall consist of the hear- 
ing by the Court of witnesses, experts, agents, counsel, 
and advocates. 

Article 44 

1. For the service of all notices upon persons other 
than the agents, counsel, and advocates, the Court 
shall apply direct to the government of the State upon 
whose territory the notice has to be served. 

2. The same provision shall apply whenever steps 
are to be taken to procure evidence on the spot. 

Article 45 . 
The hearing shall be under the control of the 
President or, if he is unable to preside, of the Vice- 
President; if neither is able to preside, the senior 
judge present shall preside. 

Article 46 
The hearing in Court shall be public, unless the 
Court shall decide otherwise, or unless the parties 
demand that the public be not admitted. 

Article 47 

1. Minutes shall be made at each hearing and 
signed by the Registrar and the President. 

2. These minutes alone shall be authentic. 

Article 48 

The Court shall make orders for the conduct of 
the case, shall decide the form and time in which 
each party must conclude its arguments, and make 



192 

all arrangements connected with the taking of evi- 
dence. 

Article 49 

The Court may, even before the hearing begins, 
call upon the agents to produce any document or to 
supply any explanations. Formal note shall be taken 
of any refusal. 

Article 50 

The Court may, at any time, entrust any individual, 
body, bureau, commission, or other organization that 
it may select, with the task of carrying out an inquiry 
or giving an expert opinion. 

Article 51 
During the hearing any relevant questions are to 
be put to the witnesses and experts under the condi- 
tions laid down by the Court in the rules of procedure 
referred to in Article 30. 

Article 52 

After the Court has received the proofs and evi- 
dence within the time specified for the purpose, it 
may refuse to accept any further oral or written evi- 
dence that one party may desire to present unless 
the other side consents. 

Article 53 

1. Whenever one of the parties does not appear 
before the Court, or fails to defend its case, the other 
party may call upon the Court to decide in favor of 
its claim. 

2. The Court must, before doing so, satisfy itself, 
not only that it has jurisdiction in accordance with 
Articles 36 and 37, but also that the claim is well 
founded in fact and law. 

Article 54 
1. When, subject to the control of the Court, the 



193 

agents, counsel, and advocates have completed their 
presentation of the case, the President shall declare 
the hearing closed. 

2. The Court shall withdraw to consider the judg- 
ment. 

3. The deliberations of the Court shall take place 
in private and remain secret. 

Article 55 

1. All questions shall be decided by a majority 
of the judges present. 

2. In the event of an equality of votes, the President 
or the judge who acts in his place shall have a casting 

VOte ' Article 56 

1. The judgment shall state the reasons on which 
it is based. 

2. It shall contain the names of the judges who 
have taken part in the decision. 

Article 57 
1. If the judgment does not represent in whole or 
in part the unanimous opinion of the judges, any 
judge shall be entitled to deliver a separate opinion. 

Article 58 
The judgment shall be signed by the President and 
by the Registrar. It shall be read in open court, due 
notice having been given to the agents. 

Article 59 

The decision of the Court has no binding force 

except between the parties and in respect of that 

particular case. A . , An 

v Article 60 

The judgment is final and without appeal. In the 
event of dispute as to the meaning or scope of the 
judgment, the Court shall construe it upon the re- 
quest of any party. 



194 

Article 61 

1. An application for revision of a judgment may 
be made only when it is based upon the discovery of 
some fact of such a nature as to be a decisive factor, 
which fact was, when the judgment was given, un- 
known to the Court and also to the party claiming 
revision, always provided that such ignorance was 
not due to negligence. 

2. The proceedings for revision shall be opened 
by a judgment of the Court expressly recording the 
existence of the new fact, recognizing that it has such 
a character as to lay the case open to revision, and 
declaring the application admissable on this ground. 

3. The Court may require previous compliance 
with the terms of the judgment before it admits pro- 
ceedings in revision. 

4. The application for revision must be made at 
latest within six months of the discovery of the new 
fact. 

5. No application for revision may be made after 
the lapse of ten years from the date of the judgment. 

Article 62 

1. Should a state consider that it has an interest 
of a legal nature which may be affected by the de- 
cision in the case, it may submit a request to the Court 
to be permitted to intervene. 

2. It shall be for the Court to decide upon this 
request. 

Article 63 

1. Whenever the construction of a convention to 
which states other than those concerned in the case 
are parties is in question, the Registrar shall notify 
all such states forthwith. 

2. Every state so notified has the right to intervene 



195 

in the proceedings; but if it uses this right, the con- 
struction given by the judgment will be equally bind- 
ing upon it. 

Article 64 

Unless otherwise decided by the Court, each party 
shall bear its own costs. 

Chapter IV: Advisory Opinions 

Article 65 

1. The Court may give an advisory opinion on 
any legal question at the request of whatever body 
may be authorized by or in accordance with the 
Charter of the United Nations to make such a request. 

2. Questions upon which the advisory opinion 
of the Court is asked shall be laid before the Court 
by means of a written request containing an exact 
statement of the question upon which an opinion is 
required, and accompanied by all documents likely 
to throw light upon the question. 

Article 66 

1. The Registrar shall forthwith give notice of 
the request for an advisory opinion to all states en- 
titled to appear before the Court. 

2. The Registrar shall also, by means of a special 
and direct communication, notify any state entitled 
to appear before the Court or international organ- 
ization considered by the Court, or, should it not 
be sitting, by the President, as likely to be able to 
furnish information on the question, that the Court 
will be prepared to receive, within a time limit 
to be fixed by the President, written statements, or to 
hear, at a public sitting to be held for the purpose, 
oral statements relating to the question. 



196 

3. Should any such state entitled to appear be- 
fore the Court have failed to receive the special 
communication referred to in paragraph 2 of this 
Article, such state may express a desire to submit a 
written statement or to be heard; and the Court will 
decide. 

4. States and organizations having presented writ- 
ten or oral statements or both shall be permitted to 
comment on the statements made by other states or 
organizations in the form, to the extent, and within 
the time limits which the Court, or, should it not be 
sitting, the President, shall decide in each particular 
case. Accordingly, the Registrar shall in due time 
communicate any such written statements to states 
and organizations having submitted similar state- 
ments. 

Article 67 

The Court shall deliver its advisory opinion in 
open Court, notice having been given to the Secre- 
tary-General and to the representatives of Mem- 
bers of the United Nations, of other states and of 
international organizations immediately concerned. 

Article 68 

In the exercise of its advisory functions the Court 
shall further be guided by the provisions of the pres- 
ent Statute which apply in contentious cases to the 
extent to which it recognizes them to be applicable. 

Chapter V: Amendment 

Article 69 

Amendments to the present Statute shall be effected 
by the same procedure as is provided by the Charter 
of the United Nations for amendments to that 
Charter, subject however to any provisions which the 



197 

General Assembly upon recommendation of the Se- 
curity Council may adopt concerning the participa- 
tion of States which are parties to the present Statute 
but are not Members of the United Nations. 

Article 70 
The Court shall have power to propose such amend- 
ments to the present Statute as it may deem necessary, 
through written communications to the Secretary- 
General, for consideration in conformity with the 
provisions of Article 69. 

Interim Arrangements 

concluded by the governments represented at 

the united nations conference on 

international organization 

The governments represented at the United Na- 
tions Conference on International Organization in 
the city of San Francisco, 

Having determined that an international organiza- 
tion to be known as the United Nations shall be estab- 
lished. 

Having this day signed the Charter of the United 
Nations, and 

Having decided that, pending the coming into 
force of the Charter and the establishment of the 
United Nations as provided in the Charter, a Prepa- 
ratory Commission of the United Nations should be 
established for the performance of certain functions 
and duties, 

Agree as follows: 

1. There is hereby established a Preparatory Com- 
mission of the United Nations for the purpose of 
making provisional arrangements for the first ses- 
sions of the General Assembly, the Security Council, 
the Economic and Social Council, and the Trustee- 



198 

ship Council, for the establishment of the Secretariat, 
and for the convening of the International Court of 
Justice. 

2. The Commission shall consist of one representa- 
tive from each government signatory to the Charter. 
The Commission shall establish its own rules of pro- 
cedure. The functions and powers of the Commission, 
when the Commission is not in session, shall be exer- 
cised by an Executive Committee composed of the 
representatives of those governments now represented 
on the Executive Committee of the Conference. The 
Executive Committee shall appoint such committees 
as may be necessary to facilitate its work, and shall 
make use of persons of special knowledge and experi- 
ence. 

3. The Commission shall be assisted by an Execu- 
tive Secretary, who shall exercise such powers and 
perform such duties as the Commission may de- 
termine, and by such staff as may be required. This 
staff shall be composed as far as possible of officials 
appointed for this purpose by the participating gov- 
ernments on the invitation of the Executive Secretary. 

4. The Commission shall : 

a. convoke the General Assembly in its first session ; 

b. prepare the provisional agenda for the first ses- 
sions of the principal organs of the Organization, and 
prepare documents and recommendations relating 
to all matters on these agenda; 

c. formulate recommendations concerning the 
possible transfer of certain functions, activities, and 
assets of the League of Nations which it may be con- 
sidered desirable for the new Organization to take 
over on terms to be arranged; 

d. examine the problems involved in the estab- 
lishment of the relationship between specialized in- 



199 

tergovernmental organizations and agencies and the 
Organization; 

e. issue invitations for the nomination of candidates 
for the International Court of Justice in accordance 
with the provisions of the Statute of the Court; 

f. prepare recommendations concerning arrange- 
ments for the Secretariat of the Organization; and 

g. make studies and prepare recommendations con- 
cerning the location of the permanent headquarters 
of the Organization. 

5. The expenses incurred by the Commission and 
the expenses incidental to the convening of the first 
meeting of the General Assembly shall be met by 
the Government of the United Kingdom of Great 
Britain and Northern Ireland or, if the Commis- 
sion so requests, shared by other Governments. All 
such advances from governments shall be deductible 
from their first contributions to the Organization. 

6. The seat of the Commission shall be located 
in London. The Commission shall hold its first meet- 
ing in San Francisco immediately after the conclusion 
of the United Nations Conference on International 
Organization. The Executive Committee shall call 
the Commission into session again as soon as possible 
after the Charter of the Organization comes into 
effect and whenever subsequently it considers such 
a session desirable. 

7. The Commission shall cease to exist upon the 
election of the Secretary-General of the Organization, 
at which time its property and records shall be trans- 
ferred to the Organization. 

8. The Government of the United States of Ameri- 
ca shall be the temporary depositary and shall have 
custody of the original document embodying these 
interim arrangements in the five languages in which 
it is signed. Duly certified copies thereof shall be 



200 

transmitted to the governments of the signatory states. 
The Government of the United States of America 
shall transfer the original to the Executive Secretary 
on his appointment. 

9. This document shall be effective as from this 
date, and shall remain open for signature by the states 
entitled to be the original Members of the United 
Nations until the Commission is dissolved in accord- 
ance with paragraph 7. 

In faith whereof, the undersigned representatives 
having been duly authorized for that purpose, sign 
this document in the English, French, Chinese, Rus- 
sian, and Spanish languages, all texts being of equal 
authenticity. 

Done in the City of San Francisco, this twenty- 
sixth day of June, 1945. 

IX. INSTRUMENTS OF GERMAN SURRENDER 

A. ALL GERMAN ARMED FORCES IN HOLLAND, NORTHWEST 

GERMANY AND DENMARK 

(The Department of State Bulletin, Vol. XII, No. 317, July 22, 1945) 

1. The German Command agrees to the surrender 
of all German armed forces in HOLLAND, in north- 
west Germany including the Frisian Islands and 
Heligoland and all other islands, in Schleswig- 
HOLSTEIN, and in DENMARK, to the C.-in-C. 2 Army 
Group. This to include all naval ships in these areas. 
These forces to lay down their arms and to surrender 
unconditionally. 

2. All hostilities on land, on sea, or in the area by 
German forces in the above areas to cease at 0800 
hrs. British Double Summer Time on Saturday 5 
May 1945. 

3. The German command to carry out at once, and 
without argument or comment, all further orders 
that will be issued by the Allied Powers on any sub- 
ject. 



201 

4. Disobedience of orders, or failure to comply 
with them, will be regarded as a breach of these sur- 
render terms and will be dealt with by the Allied 
Powers in accordance with the accepted laws and 
usages of war. 

5. This instrument of surrender is independent of, 
without prejudice to, and will be superseded by any 
general instrument of surrender imposed by or on 
behalf of the Allied Powers and applicable to Ger- 
many and the German armed forces as a whole. 

6. This instrument of surrender is written in Eng- 
lish and in German. The English version is the au- 
thentic text. 

7. The decision of the Allied Powers will be final 
if any doubt or dispute arises as to the meaning of 
interpretation of the surrender terms. 

B. L. Montgomery Friedeburg. 

Field Marshal KlNSEL. 

4 May 1945 G.Wagner. 

1830 hrs. Poleck. 

Friedel. 
b. act of military surrender (rheims) 

1. We the undersigned, acting by authority of 
the German High Command, hereby surrender un- 
conditionally to the Supreme Commander Allied 
Expeditionary Force and simultaneously to the Soviet 
High Command all forces on land, sea, and in the 
air who are at this date under German control. 

2. The German High Command will at once issue 
orders to all German military, naval and air authori- 
ties and to all forces under German control to cease ac- 
tive operations at 2301 hours Central European time 
on 8 May and to remain in the positions occupied 
at that time. No ship, vessel, or aircraft is to be scut- 
tled, or any damage done to their hull, machinery 
or equipment. 



202 

3. The German High Command will at once issue 
to the appropriate commanders, and ensure the carry- 
ing out of any further orders issued by the Supreme 
Commander, Allied Expeditionary Force and by the 
Soviet High Command. 

4. This act of military surrender is without preju- 
dice to, and will be superseded by any general in- 
strument of surrender imposed by, or on behalf of the 
United Nations and applicable to GERMANY and the 
German armed forces as a whole. 

5. In the event of the German High Command 
or any of the forces under their control failing to 
act in accordance with this Act of Surrender, the 
Supreme Commander, Allied Expeditionary Force 
and the Soviet High Command will take such puni- 
tive or other action as they deem appropriate. 

Signed at Rheims at 0241 on the 7th day of May, 1945. 

France 

On behalf of the German High Command. 

Jodl 

IN THE PRESENCE OF: 

On behalf of the Supreme On behalf of the Soviet 

Commander, Allied Ex- High Command, 

peditionary Force. Sousloparov. 

W. B. Smith 
F. Sevez 

Major General, French Army 
(Witness) 



C. ACT OF MILITARY SURRENDER (BERLIN) 

1. We the undersigned, acting by authority of the 
German High Command, hereby surrender uncon- 
ditionally to the Supreme Commander, Allied Ex- 
peditionary Force and simultaneously to the Supreme 
High Command of the Red Army all forces on land, 



203 

at sea, and in the air who are at this date under Ger- 
man control. 

2. The German High Command will at once issue 
orders to all German military, naval and air authori- 
ties and to all forces under German control to cease 
active operations at 2301 hours Central European 
time on 8th May 1945, to remain in the positions oc- 
cupied at that time and to disarm completely, hand- 
ing over their weapons and equipment to the local 
allied commanders or officers designated by Repre- 
sentatives of the Allied Supreme Commands. No 
ship, vessel, or aircraft is to be scuttled, or any dam- 
age done to their hull, machinery or equipment, and 
also to machines of all kinds, armament, apparatus, 
and all the technical means of prosecution of war 
in general. 

3. The German High Command will at once issue 
to the appropriate commanders, and ensure the carry- 
ing out of any further orders issued by the Supreme 
Commander, Allied Expeditionary Force and by 
the Supreme High Command of the Red Army. 

4. This act of military surrender is without preju- 
dice to, and will be superseded by any general instru- 
ment of surrender imposed by, or on behalf of the 
United Nations and applicable to Germany and the 
German armed forces as a whole. 

5. In the event of the German High Command 
or any of the forces under their control failing to 
act in accordance with this Act of Surrender, the 
Supreme Commander, Allied Expeditionary Force 
and the Supreme High Command of the Red Army 
will take such punitive or other action as they deem 
appropriate. 

6. This Act is drawn up in the English, Russian 
and German languages. The English and Russian 
are the only authentic texts. 



204 

Signed at Berlin on the 8. day of May, 1945 

Friedeburg Keitel Stumpf 
On behalf of the German High Command 

IN THE PRESENCE OF I 

On behalf of the On behalf of the 

Supreme Commander Supreme High Command 

Allied Expeditionary Force of the Red Army 

A W Tedder G Zhukov 

A ; t the signing also were present as witnesses : 

F. DE LATTRE-T ASSIGN Y CARL SpAATZ 

General Commanding in Chief General, Commanding 

First French, Army United States Stra- 

tegic Air Forces 

X. PROCLAMATION DEFINING TERMS 

FOR JAPANESE SURRENDER 

(The Department of State Bulletin, Vol. XIII, No. 318, July 29, 1945) 

(1) We — the President of the United States, the 
President of the National Government of the Repub- 
lic of China, and the Prime Minister of Great Britain, 
representing the hundreds of millions of our coun- 
trymen, have conferred and agree that Japan shall 
be given an opportunity to end this war. 

(2) The prodigious land, sea and air forces of 
the United States, the British Empire and of China, 
many times reinforced by their armies and air fleets 
from the west, are poised to strike the final blows 
upon Japan. This military power is sustained and 
inspired by the determination of all the Allied Na- 
tions to prosecute the war against Japan until she 
ceases to resist. 

(3) The result of the futile and senseless Ger- 
man resistance to the might of the aroused free peo- 
ples of the world stands forth in awful clarity as an 
example to the people of Japan. The might that now 
converges on Japan is immeasurably greater than 
that which, when applied to the resisting Nazis, 



205 

necessarily laid waste to the lands, the industry and 
the method of life of the whole German people. The 
full application of our military power, backed by our 
resolve, will mean the inevitable and complete de- 
struction of the Japanese armed forces and just as 
inevitably the utter devastation of the Japanese home- 
land. 

(4) The time has come for Japan to decide 
whether she will continue to be controlled by those 
self-willed militaristic advisers whose unintelligent 
calculations have brought the Empire of Japan to 
the threshold of annihilation, or whether she will fol- 
low the path of reason. 

(5) Following are our terms. We will not deviate 
from them. There are no alternatives. We shall brook 
no delay. 

(6) There must be eliminated for all time the 
authority and influence of those who have deceived 
and misled the people of Japan into embarking on 
world conquest, for we insist that a new order of 
peace, security and justice will be impossible until 
irresponsible militarism is driven from the world. 

(7) Until such a new order is established and 
until there is convincing proof that Japan's war-mak- 
ing power is destroyed, points in Japanese territory 
to be designated by the Allies shall be occupied to 
secure the achievement of the basic objectives we are 
here setting forth. 

(8) The terms of the Cairo Declaration shall be 
carried out and Japanese sovereignty shall be limited 
to the islands of Honshu, Hokkaido, Kyushu, Shikoku 
and such minor islands as we determine. 

(9) The Japanese military forces, after being com- 
pletely disarmed, shall be permitted to return to their 
homes with the opportunity to lead peaceful and 
productive lives. 



206 

(10) We do not intend that the Japanese shall 
be enslaved as a race or destroyed as a nation, but 
stern justice shall be meted out to all war criminals, 
including those who have visited cruelties upon our 
prisoners. The Japanese Government shall remove 
all obstacles to the revival and strengthening of demo- 
cratic tendencies among the Japanese people. Free- 
dom of speech, of religion and of thought, as well 
as respect for the fundamental human rights, shall 
be established. 

(11) Japan shall be permitted to maintain such 
industries as will sustain her economy and permit 
the exaction of just reparations in kind, but not those 
which would enable her to rearm for war. To this 
end, access to, as distinguished from control of, 
raw materials shall be permitted. Eventual Japanese 
participation in world trade relations shall be per- 
mitted. 

(12) The occupying forces of the Allies shall be 
withdrawn from Japan as soon as these objectives 
have been accomplished and there has been establish- 
ed, in accordance with the freely expressed will of the 
Japanese people, a peacefully inclined and responsi- 
ble Government. 

(13) We call upon the Government of Japan to 
proclaim now the unconditional surrender of all 
Japanese armed forces, and to provide proper and 
adequate assurances of their good faith in such action. 
The alternative for Japan is prompt and utter de* 
struction. 



207 
XI. THE POTSDAM DECLARATION 

(New York Times, Aug. 3, 1945) 

Report on the Tripartite Conference 
of Berlin 

On July 17, 1945, the President of the United 
States of America, Harry S. Truman; the Chairman 
of the Council of People's Commissars of the Union 
of Soviet Socialist Republics, Generalissimo J. V. 
Stalin, and the Prime Minister of Great Britain, 
Winston S. Churchill, together with Mr. Clement R. 
Attlee, met in the Tripartite Conference of Berlin. 
They were accompanied by the Foreign Secretaries 
of the three Governments, Mr. James F. Byrnes, Mr. 
V. M. MolotofT, and Mr. Anthony Eden, the Chief of 
Staff, and other advisers. 

There were nine meetings between July 17 and 
July 25. The Conference was then interrupted for 
two days while the results of the British general elec- 
tion were being declared. 

On July 28 Mr. Attlee returned to the Conference 
as Prime Minister, accompanied by the new Secretary 
of State for Foreign Affairs, Mr. Ernest Bevin. Four 
days of further discussion then toook place. During 
the course of the Conference there were regular meet- 
ings of the heads of the three Governments accom- 
panied by the Foreign Secretaries, and also of the 
Foreign Sc. retaries alone. Committees appointed 
by the Foreign Secretaries for preliminary considera- 
tion of questions before the Conference also met daily. 

The meetings of the Conference were held at the 
Cecilienhof, near Potsdam. The Conference ended 
on Aug. 2, 1945. 

Important decisions and agreements were reached. 
Views were exchanged on a number of other ques- 
tions and consideration of these matters will be con- 



208 

tinued by the Council of Foreign Ministers establish- 
ed by the Conference. 

President Truman, Generalissimo Stalin and 
Prime Minister Attlee leave this Conference, which 
has strengthened the ties between the three Govern- 
ments and extended the scope of their collaboration 
and understanding, with renewed confidence that 
their Governments and peoples, together with the 
other United Nations, will insure the creation of a 
just and enduring peace. 

Establishment of A Council of 
Foreign Ministers 

The Conference reached an agreement for the 
establishment of a Council of Foreign Ministers 
representing the five principal powers to continue the 
necessary preparatory work for the peace settlements 
and to take up other matters which from time to time 
may be referred to the Council by agreement of the 
Governments participating in the Council. 

The text of the agreement for the establishment of 
the Council of Foreign Ministers is as f ollows : 

1. There shall be established a Council composed 
of the Foreign Ministers of the United Kingdom, the 
Union of the Soviet Socialist Republics, China, 
France and the United States. 

2. (I) The Council shall normally meet in Lon- 
don, which shall be the permanent seat of the Joint 
Secretariat which the Council will form. Each of the 
Foreign Ministers will be accompanied by a high- 
ranking deputy, duly authorized to carry on the work 
of the Council in the absence of his Foreign Minister, 
and by a small staff of technical advisers. 

(II) The first meeting of the Council shall be 
held in London not later than Sept. 1, 1945. Meetings 
may be held by common agreement in other capitals 
as may be agreed from time to time. 



209 

3. (I) As its immediate important task the Coun- 
cil shall be authorized to draw up, with a view to 
their submission to the United Nations, treaties of 
peace with Italy, Rumania, Bulgaria, Hungary and 
Finland, and to propose settlements of territorial 
questions outstanding on the termination of the war in 
Europe. The Council shall be utilized for the prepa- 
ration of a peace settlement for Germany to be ac- 
cepted by the government of Germany when a gov- 
ernment adequate for the purpose is established. 

(II) For the discharge of each of these tasks the 
Council will be composed of the members represent- 
ing those states which were signatory to the terms of 
surrender imposed upon the enemy state concerned. 
For the purpose of the peace settlement for Italy, 
France shall be regarded as a signatory to the terms 
of surrender for Italy. Other members will be invited 
to paticipate when matters directly concerning them 
are under discussion. 

(III) Other matters may from time to time be 
referred to the Council by agreement between the 
member Governments. 

OUTSIDE STATES TO BE INVITED 

4. (I) Whenever the Council is considering a ques- 
tion of direct interest to a State not represented there- 
on, such State should be invited to send representa- 
tives to participate in the discussion and study of that 
question. 

(II) The Council may adapt its procedure to the 
particular problem under consideration. In some 
cases it may hold its own preliminary discussions 
prior to the participation of other interested states. 
In other cases, the Council may convoke a formal 
conference of the state chiefly interested in seeking a 
solution of the particular problem. 



210 

In accordance with the decision of the Conference 
the three Governments have each addressed an identi- 
cal invitation to the Governments of China and 
France to adopt this text and to join in establishing 
the Council. 

The establishment of the Council of Foreign Min- 
isters for the specific purposes named in the text will 
be without prejudice to the agreement of the Crimea 
conference that there should be periodic consultation 
among the foreign secretaries of the United States, 
the Union of Soviet Socialist Republics and the 
United Kingdom. 

The conference also considered the position of the 
European Advisory Commission in the light of the 
agreement to establish the Council of Foreign Min- 
isters. It was noted with satisfaction that the com- 
mission had ably discharged its principal task by 
the recommendations that it had furnished for the 
terms of Germany's unconditional surrender, for the 
zones of occupation in Germany and Austria, and for 
the inter- Allied control machinery in those countries. 
It was felt that further work of a detailed character 
for the coordination of Allied policy for the control 
of Germany and Austria would in future fall within 
the competence of the Allied control council at 
Berlin and the Allied commission at Vienna. Accord- 
ingly, it was agreed to recommend that the European 
Advisory Commission be dissolved. 

Germany 

The Allied armies are in occupation of the whole 
of Germany and the German people have begun to 
atone for the terrible crimes committed under the 
leadership of those whom in the hour of their suc- 
cess, they openly approved and blindly obeyed. 

Agreement has been reached at this conference on 



211 

the political and economic principles of a coordinated 
Allied policy toward defeated Germany during the 
period of Allied control. 

The purpose of this agreement is to carry out the 
Crimea Declaration on Germany. German militarism 
and nazism will be extirpated and the Allies will take 
in agreement together, now and in the future, the 
other measures necessary to assure that Germany 
never again will threaten her neighbors or the peace 
of the world. 

It is not the intention of the Allies to destroy or 
enslave the German people. It is the intention of the 
Allies that the German people be given the oppor- 
tunity to prepare for the eventual reconstruction of 
their life on a democratic and peaceful basis. If their 
own efforts are steadily directed to this end, it will be 
possible for them in due course to take their place 
among the free and peaceful peoples of the world. 

The text of the agreement is as follows : 

The Political and Economic Principles to 

Govern the Treatment of Germany in the 

Initial Control Period 

a. political principles. 

1. In accordance with the agreement on control 
machinery in Germany, supreme authority in Ger- 
many is exercised on instructions from their respec- 
tive Governments, by the Commander in Chief of 
the Armed Forces of the United States of America, 
the United Kingdom, the Union of Soviet Socialist 
Republics, and the French Republic, each in his 
own zone of occupation, and also jointly, in matters 
affecting Germany as a whole, in their capacity as 
members of the Control Council. 

2. So far as is practicable, there shall be uniformity 



212 

of treatment of the German population throughout 
Germany. 

3. The purposes of the occupation of Germany 
by which the Control Council shall be guided are: 

(I) The complete disarmament and demilitariza- 
tion of Germany and the elimination or control of 
all German industry that could be used for military 
production. To these ends: 

(A) All German land, naval and air forces, the 
S.S., S.A., S.D., and Gestapo, with all their organiza- 
tions, staffs and institutions, including the general 
staff, the officers' corps, reserve corps, military 
schools, war veterans' organizations and all other mil- 
itary and quasi-military organizations, together with 
all clubs and associations which serve to keep alive 
the military tradition in Germany, shall be complete- 
ly and finally abolished in such manner as permanent- 
ly to prevent the revival or reorganization of German 
militarism and nazism. 

(B) All arms, ammunition and implements of war 
and all specialized facilities for their production shall 
be held at the disposal of the Allies or destroyed. The 
maintenance and production of all aircraft and all 
arms, ammunition and implements of war shall be 
prevented. 

(II) To convince the German people that they 
have suffered a total military defeat and that they 
cannot escape responsibility for what they have 
brought upon themselves, since their own ruthless 
warfare and the fanatical Nazi resistance have de- 
stroyed German economy and made chaos and suffer- 
ing inevitable. 

(III) To destroy the National Socialist Party and 
its affiliated and supervised organizations, to dissolve 
all Nazi institutions, to insure that they are not re- 



213 

vived in any form, and to prevent all Nazi and mili- 
tarist activity or propaganda. 

(IV) To prepare for the eventual reconstruction 
of German political life on a democratic basis and 
for eventual peaceful cooperation in international 
life by Germany. 

4. All Nazi laws which provided the basis of 
the Hitler regime or established discrimination on 
grounds of race, creed, or political opinion shall be 
abolished. No such discriminations, whether legal, 
administrative or otherwise, shall be tolerated. 

5. War criminals and those who have participated 
in planning or carrying out Nazi enterprises involv- 
ing or resulting in atrocities or war crimes shall be 
arrested and brought to judgment. Nazi leaders, in- 
fluential Nazi supporters and high officials of Nazi 
organizations and institutions and any other persons 
dangerous to the occupation or its objectives shall be 
arrested and interned. 

6. All members of the Nazi party who have been 
more than nominal participants in its activities and 
all other persons hostile to Allied purposes shall be 
removed from public and semi-public office and from 
positions of responsibility in important private un- 
dertakings. Such persons shall be replaced by persons 
who, by their political and moral qualities, are deem- 
ed capable of assisting in developing genuine demo- 
cratic institutions in Germany. 

7. German education shall be so controlled as com- 
pletely to eliminate Nazi and militarist doctrines 
and to make possible the successful development of 
democratic ideas. 

TO REORGANIZE JUDICIAL SYSTEM 

8. The judicial system will be reorganized in ac- 
cordance with the principles of democracy, of justice 



214 

under law, and of equal rights for all citizens with- 
out distinction of race, nationality or religion. 

9. The administration of affairs in Germany should 
be directed toward the decentralization of the politi- 
cal structure and the development of local responsi- 
bility. To this end : 

(I) Local self-government shall be restored 
throughout Germany on democratic principles and 
in particular through elective councils as rapidly as 
is consistent with military security and the purposes 
of military occupation; 

(II) All democratic political parties with rights 
of assembly and of public discussions shall be allowed 
and encouraged throughout Germany; 

(III) Representatives and elective principles 
shall be introduced into regional, provincial and 
state (land) administration as rapidly as may be justi- 
fied by the successful application of these principles 
in local self-government; 

(IV) For the time being no central German Gov- 
ernment shall be established. Notwithstanding this, 
however, certain essential central German admin- 
istrative departments, headed by state secretaries, 
shall be established, particularly in the fields of fi- 
nance, transport, communictions, foreign trade and 
industry. Such departments will act under the direc- 
tion of the Control Council. 

10. Subject to the necessity for maintaining mili- 
tary security, freedom of speech, press and religion 
shall be permitted, and religfous institutions shall be 
respected. Subject likewise to the maintenance of 
military security, the formation of free trade unions 
shall be permitted. 



215 



B. ECONOMIC PRINCIPLES 



1 1. In order to eliminate Germany's war potential, 
the production of arms, ammunition and implements 
of war as well as all types of aircraft and sea-going 
ships shall be prohibited and prevented. Production 
of metals, chemicals, machinery and other items that 
are directly necessary to a war economy shall be rigid- 
ly controlled and restricted to Germany's approved 
post-war peacetime needs to meet the objectives stated 
in Paragraph IS. Productive capacity not needed for 
permitted production shall be removed in accordance 
with the reparations plans recommended by the Al- 
lied Commission on reparations and approved by the 
Governments concerned, or if not removed shall be 
destroyed. 

12. At the earliest practicable date the German 
economy shall be decentralized for the purpose of 
eliminating the present excessive concentration of 
economic power as exemplified in particular by car- 
tels, syndicates, trusts and other monopolistic arrange- 
ments. 

13. In organizing the German economy, primary 
emphasis shall be given to the development of agri- 
culture and peaceful domestic industries. 

14. During the period of occupation Germany 
shall be treated as a single economic unit. To this end 
common policies shall be established in regard, to : 

(A) Mining and industrial production and allo- 
cations; 

(B) Agriculture, forestry and fishing; 

(C) Wages, prices and rationing; 

(D) Import and export program for Germany as 
a whole; 

(E) Currency and banking, central taxation and 
customs; 



216 

(F) Reparation and removal of industrial war 
potential; 

(G) Transportation and communications. 

In applying these policies account shall be taken, 
where appropriate, of varying local conditions. 

15. Allied controls shall be imposed upon the Ger- 
man economy, but only to the extent necessary; 

(A) To carry out programs of industrial dis- 
armament and demilitarization, of reparations, and 
of approved exports and imports. 

(B) To assure the production and maintenance of 
goods and services required to meet the needs of the 
occupying forces and displaced persons in Germany, 
and essential to maintain in Germany average living 
standards not exceeding the average of the standards 
of living of European countries. (European countries 
means all European countries, excluding the United 
Kingdom and the Union of Soviet Socialist Repub- 
lics.) 

(C) To insure in the manner determined by the 
Control Council the equitable distribution of essen- 
tial commodities between the several zones so as to 
produce a balanced economy throughout Germany 
and reduce the need for imports. 

(D) To control German industry and all economic 
and financial international transactions, including ex- 
ports and imports, with the aim of preventing Ger- 
many from developing a war potential and of achiev- 
ing the other objectives named herein. 

(E) To control all German public or private 
scientific bodies, research and experimental institu- 
tions, laboratories, etc., connected with economic ac- 
tivities. 

GERMANS TO RUN THINGS 

16. In the imposition and maintenance of economic 
controls established by the Control Council German 



217 

administrative machinery shall be created and the 
German authorities shall be required to the fullest 
extent practicable to proclaim and assume adminis- 
tration of such controls. Thus it should be brought 
home to the German people that the responsibility 
for the administration of such controls and any break- 
down in these controls will rest with themselves. Any 
German controls which may run counter to the ob- 
jective of occupation will be prohibited. 

17. Measures shall be promptly taken : 

(A) To effect essential repair of transport; 

(B) To enlarge coal production; 

(C) To maximize agriculture output; and 

(D) To effect emergency repair of housing and 
essential utilities. 

18. Appropriate steps shall be taken by the Control 
Council to exercise control and the power of disposi- 
tion over German-owned external assets not already 
under the control of United Nations which have taken 
part in the war against Germany. 

19. Payment of reparations should leave enough re- 
sources to enable the German people to subsist with- 
out external assistance. In working out the economic 
balance of Germany the necessary means must be 
provided to pay for imports approved by the Con- 
trol Council in Germany. The proceeds of exports 
from current production and stocks shall be avail- 
able in the first place for payment for such imports. 

The above clause will not apply to the equipment 
and products referred to in Paragraphs 4 (A) and 
4 (B) of the reparations agreement. 

Reparations from Germany 

In accordance with the Crimea decision that Ger- 
many be compelled to compensate to the greatest pos- 
sible extent for the loss and suffering that she has 



218 

caused to the United Nations and for which the Ger- 
man people cannot escape responsibility, the follow- 
ing agreement on reparations was reached: 

1. Reparation claims of the U.S.S.R. shall be met 
by removals from the zone of Germany occupied by 
the U.S.S.R. and from appropriate German external 

assets. 

2. The U.S.S.R. undertakes to settle the reparation 
claims of Poland from its own share of reparations. 

3. The reparation claims of the United States, the 
United Kingdom and other countries entitled to 
reparations shall be met from the western zones and 
from appropriate German external assets. 

4. In addition to the reparations to be taken by the 
U.S.S.R. from its own zone of occupation, the 
U.S.S.R. shall receive additionally from the western 
zones: 

(A) Fifteen per cent of such usable and complete 
industrial capital equipment, in the first place from 
the metallurgical, chemical and machine manufactur- 
ing industries, as is unnecessary for the German peace 
economy and should be removed from the western 
zones of Germany, in exchange for an equivalent 
value of food, coal, potash, zinc, timber, clay prod- 
ucts, petroleum products and such other commodities 
as may be agreed upon. 

(B) Ten per cent of such industrial capital equip- 
ment as is unnecessary for the German peace economy 
and should be removed from the western zones, to be 
transferred to the Soviet Government on reparations 
account without payment or exchange of any kind in 
return. 

Removals of equipment as provided in (A) and 
( B ) above shall be made simultaneously. 



219 

REPARATIONS SET IN SIX MONTHS 

5. The amount of equipment to be removed from 
the western zones on account of reparations must be 
determined within six months from now at the latest. 

6. Removals of industrial capital equipment shall 
begin as soon as possible and shall be completed with- 
in two years from the determination specified in 
Paragraph 5. The delivery of products covered by 
4 (A) above shall begin as soon as possible and shall 
be made by the U.S.S.R. in agreed installments within 
five years of the date hereof. The determination of the 
amount and character of the industrial capital equip- 
ment unnecessary for the German peace economy and 
therefore available for reparations shall be made by 
the Control Council under policies fixed by the Allied 
Commission on Reparations, with the participation 
of France, subject to the final approval of the zone 
commander in the zone from which the equipment is 
to be removed. 

7. Prior to the fixing of the total amount of equip- 
ment subject to removal, advance deliveries shall be 
made in respect of such equipment as will be deter- 
mined to be eligible for delivery in accordance with 
the procedure set forth in the last sentence of Para- 
graph 6. 

8. The Soviet Government renounces all claims in 
respect of reparations to shares of German enterprises 
which are located in the western zones of occupation 
in Germany, as well as to German foreign assets in 
all countries, except those specified in Paragraph 9 
below. 

9. The Governments of the United Kingdom and 
the United States of America renounce their claims 
in respect of reparations to shares of German enter- 
prises which are located in the Eastern Zone of occu- 



220 

pation in Germany, as well as to German foreign as- 
sets in Bulgaria, Finland, Hungary, Rumania and 
eastern Austria. 

10. The Soviet Government makes no claims to 
gold captured by the Allied troops in Germany. 

Disposal of the German Navy and 
Merchant Marine 

The Conference agreed in principle upon arrange- 
ments for the use and disposal of the surrendered Ger- 
man Fleet and merchant ships. It was decided that 
the three governments would appoint experts to work 
out together detailed plans to give effect to the agreed 
principles. A further joint statement will be pub- 
lished simultaneously by the three governments in 
due course. 

City of Koenigsberg and the Adjacent Area 

The Conference examined a proposal by the Soviet 
Government that pending the final determination of 
territorial questions at the peace settlement the sec- 
tion of the western frontier of the Union of Soviet 
Socialist Republics which is adjacent to the Baltic 
Sea should pass from a point on the eastern shore of 
the Bay of Danzig to the east, north of Braunsberg- 
Goldap, to the meeting point of the frontiers of Lithu- 
ania, the Polish Republic and East Prussia. 

The Conference has agreed in principle to the pro- 
posal of the Soviet Government concerning the ulti- 
mate transfer to the Soviet Union of the city of 
Koenigsberg and the area adjacent to it as described 
above, subject to expert examination of the actual 
frontier. 

The President of the United States and the British 
Prime Minister have declared that they will support 
the proposal of the Conference at the forthcoming 
peace settlement. 



221 

War Criminals 

The three governments have taken note of the dis- 
cussions which have been proceeding in recent weeks 
in London between British, United States, Soviet 
and French representatives with a view to reaching 
agreement on the methods of trial of those major war 
criminals whose crimes under the Moscow Declara- 
tion of October, 1943, have no particular geographi- 
cal localization. 

The three governments reaffirm their intention to 
bring those criminals to swift and sure justice. They 
hope that the negotiations in London will result in 
speedy agreement being reached for this purpose, and 
they regard it as a matter of great importance that the 
trial of those major criminals should begin at the 
earliest possible date. The first list of defendants will 
be published before September 1. 

Austria 

The conference examined a proposal by the Soviet 
Government on the extension of the authority of the 
Austrian Provisional Government to all of Austria. 

The three governments agreed that they were pre- 
pared to examine this question after the entry of the 
British and American forces into the city of Vienna. 

Poland 

The conference considered questions relating to 
the Polish Provisional Government and the western 
boundary of Poland. 

On the Polish Provisional Government of National 
Unity they defined their attitude in the following 
statement: 

A — We have taken note with pleasure of the 
agreement reached among representative Poles from 
Poland and abroad which has made possible the 



222 

formation, in accordance with the decisions reached 
at the Crimea Conference, of a Polish Provisional 
Government of National Unity recognized by the 
three Powers. The establishment by the British and 
United States Governments of diplomatic relations 
with the Polish Provisional Government has resulted 
in the withdrawal of their recognition from the 
former Polish Government in London, which no 
longer exists. 

The British and United States Governments have 
taken measures to protect the interest of the Polish 
Provisional Government, as the recognized Govern- 
ment of the Polish State, in the property belonging to 
the Polish State located in their territories and under 
their control, whatever the form of this property may 
be. They have further taken measures to prevent 
alienation to third parties of such property. All 
proper facilities will be given to the Polish Provi- 
sional Government for the exercise of the ordinary 
legal remedies for the recovery of any property be- 
longing to the Polish State which may have been 
wrongfully alienated. 

The three Powers are anxious to assist the Polish 
Provisional Government in facilitating the return to 
Poland as soon as practicable of all Poles abroad who 
wish to go, including members of the Polish armed 
forces and the merchant marine. They expect that 
those Poles who return home shall be accorded per- 
sonal and property rights on the same basis as all 
Polish citizens. 

ALLIED PRESS TO SEE POLAND 

The three powers note that the Polish Provisional 
Government, in accordance with the decisions of the 
Crimea Conference, has agreed to the holding of 
free and unfettered elections as soon as possible on 



22.^ 

the basis of universal suffrage and secret ballot in 
which all democratic and anti-Nazi parties shall have 
the right to take part and to put forward candidates, 
and that representatives of the Allied press shall en- 
joy full freedom to report to the world upon de- 
velopments in Poland before and during the elections. 

B — The following agreement was reached on the 
western frontier of Poland : 

In conformity with the agreement on Poland 
reached at the Crimea Conference the three heads 
of Government have sought the opinion of the Polish 
Provisional Government of National Unity in regard 
to the accession of territory in the north and west 
which Poland should receive. The president of the 
National Council of Poland and members of the 
Polish Provisional Government of National Unity 
have been received at the conference and have fully 
presented their views. The three heads of Govern- 
ment reaffirm their opinion that the final delimitation 
of the western frontier of Poland should await the 
peace settlement. 

The three heads of Government agree that, pend- 
ing the final determination of Poland's western fron- 
tier, the former German territories east of a line run- 
ning from the Baltic Sea immediately west of Swine- 
munde, and thence along the Oder River to the con- 
fluence of the western Neisse River and along the 
western Neisse to the Czechoslovak frontier, includ- 
ing that portion of East Prussia not placed under the 
administration of the Union of Soviet Socialist Re- 
publics in accordance with the understanding reached 
at this Conference and including the area of the for- 
mer free city of Danzig, shall be under the adminis- 
tration of the Polish State and for such purposes 
should not be considered as part of the Soviet zone 
of occupation in Germany. 



224 

Conclusion of Peace Treaties and Admission to 
The United Nations Organization 

The Conference agreed upon the following state- 
ment of common policy for establishing, as soon as 
possible, the conditions of lasting peace after victory 
in Europe : 

The three Governments consider it desirable that 
the present anomalous position of Italy, Bulgaria, 
Finland, Hungary ana 1 Rumania should be termi- 
nated by the conclusion of peace treaties. They trust 
that the other interested Allied Governments will 
share these views. 

For their part, the three Governments have in- 
cluded the preparation of a peace treaty for Italy as 
the first among the immediate important tasks to be 
undertaken by the new Council of Foreign Ministers. 
Italy was the first of the Axis powers to break with 
Germany, to whose defeat she has made a material 
contribution, and has now joined with the Allies in 
the struggle against Japan. 

Italy has freed herself from the Fascist regime and 
is making good progress toward the re-establishment 
of a democratic government and institutions. The con- 
clusion of such a peace treaty with a recognized and 
democratic Italian Government will make it possible 
for the three Governments to fulfill their desire to 
support an application from Italy for membership of 
the United Nations. 

The three Governments have also charged the 
Council of Foreign Ministers with the task of pre- 
paring peace treaties for Bulgaria, Finland, Hungary 
and Rumania. 

The conclusion of peace treaties with recognized 
democratic governments in these states will also enable 
the three Governments to support applications from 
them for membership of the United Nations. The 



225 

three Governments agree to examine, each separately 
in the near future, in the light of the conditions then 
prevailing, the establishment of diplomatic relations 
with Finland, Rumania, Bulgaria and Hungary to 
the extent possible prior to the conclusion of peace 
treaties with those countries. 

The three Governments have no doubt that in view 
of the changed conditions resulting from the termina- 
tion of the war in Europe, representatives of the 
Allied press will enjoy full freedom to report to the 
world upon developments in Rumania, Bulgaria, 
Hungary and Finland. 

As regards the admission of other States into the 
United Nations organization, Article 4 of the Charter 
of the United Nations declared that: 

"1. Membership in the United Nations is open to 
all other peace-loving States who accept the obliga- 
tions contained in the present Charter and, in the 
judgment of the organization, are able and willing to 
carry out these obligations; 

a 2. The admission of any such state to member- 
ship in the United Nations will be effected by a de- 
cision of the General Assembly upon the recommen- 
dation of the Security Council." 

The three Governments, so far as they are con- 
cerned, will support applications for membership 
from those States which have remained neutral dur- 
ing the war and which fulfill the qualifications set 
out above. 

The three Governments feel bound however to 
make it clear that they for their part would not favor 
any application for membership put forward by the 
present Spanish Government, which, having been 
founded with the support of the Axis Powers, does 
not, in view of its origins, its nature, its record and 
its close association with the aggressor States, possess 



226 

the qualifications necessary to justify such member- 
ship. Territorial Trusteeship 

The conference examined a proposal by the Soviet 
Government concerning trusteeship territories as de- 
fined in the decision of the Crimea Conference and 
in the Charter of the United Nations Organization. 

After an exchange of views on this question it was 
decided that the disposition of any former Italian 
territories was one to be decided in connection with 
the preparation of a peace treaty for Italy and that 
the question of Italian territory would be consid- 
ered by the September council of Ministers of For- 
eign Affairs. 

Revised Allied Control Commission Procedure 
in Rumania, Bulgaria, and Hungary 

The three Governments took note that the Soviet 
representatives on the Allied Control Commissions 
in Rumania, Bulgaria and Hungary have communi- 
cated to their United Kingdom and United States 
colleagues proposals for improving the work of the 
control commission, now that hostilities in Europe 
have ceased. 

The three Governments agreed that the revision 
of the procedures of the Allied Control Commissions 
in these countries would now be undertaken, taking 
into account the interests and responsibilities of the 
three Governments which together presented the 
terms of armistice to the respective countries, and 
accepting as a basis the agreed proposals. 

Orderly Transfers of German Poulations 

The conference reached the following agreement 
on the removal of Germans from Poland, Czecho- 
slovakia and Hungary: 

The three Governments having considered the 



227 

question in all its aspects, recognize that the transfer 
to Germany of German populations, or elements 
thereof, remaining in Poland, Czechoslovakia and 
Hungary, will have to be undertaken. They agree 
that any transfers that take place should be effected 
in an orderly and humane manner. 

Since the influx of a large number of Germans into 
Germany would increase the burden already resting 
on the occupying authorities, they consider that the 
Allied Control Council in Germany should in the 
first instance examine the problem with special re- 
gard to the question of the equitable distribution of 
these Germans among the several zones of occupa- 
tion. They are accordingly instructing their respective 
representatives on the control council to report to 
their Governments as soon as possible the extent to 
which such persons have already entered Germany 
from Poland, Czechoslovakia and Hungary, and to 
submit an estimate of the time and rate at which 
further transfers could be carried out, having regard 
to the present situation in Germany. 

The Czechoslovak Government, the Polish Pro- 
visional Government and the control council in Hun- 
gary are at the same time being informed of the above 
and are being requested meanwhile to suspend further 
expulsions pending the examination by the Govern- 
ments concerned of the report from their representa- 
tives on the control council. 

Military Talks 
During the conference there were meetings be- 
tween the Chiefs of Staff of the three Governments 
on military matters of common interest. 
Approved: 

J. V. Stalin, 
Harry S. Truman, 
C. R. Attlee. 



228 

XII. SPECIAL ORDERS BY THE SUPREME 

COMMANDER, ALLIED EXPEDITIONARY FORCE TO 
THE GERMAN HIGH COMMAND RELATING TO 

NAVAL FORCES 

(The Department of State Bulletin, Vol. XIII, No. 319, August 5, 1945) 

For the purpose of these orders the term 
"Allied Representatives" shall be deemed 
to include the Supreme Commander, Al- 
lied Expeditionary Force, and any subor- 
dinate commander, staff officer or agent 
acting pursuant to his orders. 

SPECIAL ORDERS BY THE SUPREME COMMANDER, ALLIED 
EXPEDITIONARY FORCE TO THE GERMAN HIGH COM- 
MAND RELATING TO NAVAL FORCES 

Part I. General 

Definition of Naval Forces 

1. For the purpose of these orders all formations, 
units and personnel of the German Navy together 
with the Marine Kusten Polizei shall be referred 
to as the German Naval Forces. 

2. Members of the Marine Kusten Polizei will 
immediately be placed under the command of the 
appropriate German Naval Commanders who will 
be responsible for their disarmament and discipline, 
as well as for their maintenance and supply where 
applicable, to the same extent and degree as for 
units of the German Navy. 

German Naval Representatives and information re- 
quired immediately 

3. The German High Command will despatch 
within 48 hours after the surrender becomes ef- 
fective, a responsible Flag Officer to the Allied Naval 
Commander, Expeditionary Force at his Headquar- 



229 

ters. This Flag Officer will furnish the Allied Naval 
Commander, Expeditionary Force, with: 

a. Corrected copies of charts showing all mine- 
fields in Western European waters, including the 
BALTIC as far as LUBECK (inclusive) which 
have been laid by German and German-controlled 
vessels or aircraft, positions of all wrecks, booms and 
other underwater obstructions in this area, details 
of the German convoy routes and searched channels 
and of all buoys, lights and other navigational aids 
in this area. The appropriate navigational publica- 
tions are also required. 

b. Details of the exact location of all departments 
and branches of the German Admiralty (OKM). 

c. All available information concerning the num- 
bers and types of German minesweepers and sperr- 
brechers in German controlled Dutch ports and Ger- 
man NORTH SEA ports that can be obtained with- 
out delaying his departure. This German Flag Offi- 
cer is to be accompanied by a Communications Offi- 
cer who is familiar with the German Naval W/T 
organization and who is to bring with him the cur- 
rent naval communication Orders, including alloca- 
tion of frequencies, list of W/T and R/T call signs 
in force, and a list of all codes and cyphers in use, and 
intended to be brought into use. 

d. Location of all surface warships down to and 
including "Elbing" class Torpedo Boats, and of all 
submarines and 'E' Boats. 

4. The German High Command will also des- 
patch within 48 hours after the surrender becomes 
effective a responsible officer, not below the rank of 
Captain, by coastal craft to report to the Admiral 
Commanding at DOVER for onward routing to 
Commander-in-Chief, THE NORE, with: 

a. Corrected copies of charts showing all mine- 



230 

fields in the NORTH SEA SOUTH of 54°30' 
NORTH and EAST of 1°30' EAST laid by Ger- 
man and German-controlled vessels or aircraft, posi- 
tions of all wrecks, booms and all other underwater 
obstructions; details of all German Convoy routes 
and searched channels in this area, and of all buoys, 
lights and other navigational aids which are under 
German control. Appropriate navigational publica- 
tions are also required. 

b. All available information concerning the num- 
bers and types of German minesweepers and sperr- 
brechers in German controlled Dutch ports and Ger- 
man NORTH SEA ports that can be obtained with- 
out delaying his departure. 

5. Another responsible Gdrman Naval Officer, 
with similar information is to be despatched by un- 
escorted aircraft painted white to MAN STON Aero- 
drome position 51°20' NORTH, 01°20' EAST for on- 
ward routing to Commander-in-Chief, THE NORE. 

6. The German High Command will issue in- 
structions to certain German naval commands as 
indicated below: 

a. The Naval Commander-in-Chief, NORTH 
SEA will despatch by coastal craft within 48 hours 
after the surrender becomes effective a responsible 
officer, not below the rank of Captain, to the Ad- 
miral Commanding at DOVER for onward rout- 
ing to Commander-in-Chief, THE NORE, with: 

(1) details of minesweeping operations carried 
out in the German convoy route between the HOOK 
OF HOLLAND and HAMBURG and in ap- 
proaches to harbours between these two ports during 
the previous 60 days; 

(2) numbers and positions of all British mines 
swept during these operations; 

(3) details of all controlled minefields in this area 



231 

and information whether they have been rendered 
ineffective; 

(4) details of all other mining and types of mines 
employed in the harbours and harbour approaches of 
CUXHAVEN, EMDEN, TERSCHELLING, 
TEXEL, IJMUIDEN, AMSTERDAM, SCHEV- 
ENINGEN, HOOK OF HOLLAND and ROT- 
TERDAM; 

(5) berthing facilities in the harbours enumerated 
in paragraph 6^.(4) above and the numbers of 
auxiliary minesweepers which can be accommodated ; 

(6) a list of all W/T and R/T call signs in use 
by the German Navy. 

Any of the above information which cannot be 
obtained without delaying the departure of this offi- 
cer will be forwarded subsequently as soon as it is 
available. 

b. The Naval Commander-in-Chief, NORTH 
SEA, will also despatch as soon as possible by coastal 
craft to DOVER thirteen German Naval Officers 
who must be familiar with the German swept chan- 
nels between the HOOK OF HOLLAND and CUX- 
HAVEN. These officers will bring with them all 
the charts and books required for navigation in this 
area and will be accompanied by pilots (and in- 
terpreters if necessary). 

c. The Naval Commander-in-Chief, NORWAY, 
will despatch by sea within 48 hours after the sur- 
render becomes effective, a responsible officer, not 
below the rank of Captain to the Commander-in- 
Chief, ROSYTH, with corrected copies of charts 
showing all German minefields in the NORTH 
SEA, NORTH of 56° NORTH, all wrecks, booms 
and other underwater obstructions, details of Ger- 
man convoy routes and searched channels in this 
area and will be accompanied by pilots (and 



232 

wegian ports and of all buoys, lights and other 
navigational aids in this area. This officer will also 
bring with him the disposition of all '"LP Boats and 
details of all orders affecting their future movements. 
He will be accompanied by six German Naval Offi- 
cers with pilots (and interpreters if necessary) who 
are familiar with the coastal swept channels be- 
tween OSLO and TROMSO. These officers will 
bring with them all the charts and books required 
for navigation in Norwegian waters, and a list of all 
W/T and R/T call signs in use by the German Navy. 

d. The Naval Commander-in-Chief, NORWAY, 
will despatch a duplicate party to the above with 
similar information by air in unescorted aircraft 
painted white to DREM Airfield 56°02' NORTH 
02°48' WEST. 

e. The Naval Commander-in-Chief , NORWAY, 
will report by W/T to the Commander-in-Chief, 
ROSYTH, within 48 hours after the surrender be- 
comes effective, the following information : 

(1) Berthing facilities at OSLO, CHRISTIAN- 
SAND, STAV ANGER, BERGEN, TROND- 
HEIM, NARVIK and TROMSO. 

(2) The approximate quantities of furnace oil 
fuel, diesel oil fuel and coal at all the principal 
Norwegian ports between OSLO and TROMSO. 

7. The German Admiral SKAGGERAK will 
despatch by sea within 48 hours after the surrender 
becomes effective, a responsible officer not below the 
rank of Captain, to the Commander-in-Chief, 
ROSYTH, with corrected copies of charts showing 
all German minefields, wrecks booms and other un- 
derwater obstruction, details of German convoy 
routes and searched channels, buoys, lights and other 
navigational aids in the SKAGGERAK, KATTE- 
GAT, THE BELTS AND SOUND, KIEL BAY 



233 

AND BALTIC WATERS WEST OF 14° EAST. 

This officer will also bring with him the disposition 
of all 'U' boats in the above area and details of all 
orders affecting their future movements. He will be 
accompanied by three German Naval officers with 
pilots (and interpreters if necessary) who are fa- 
miliar with the coastal swept channels, and channels 
in Swedish territorial waters, in the waters referred 
to above. These officers will bring with them all the 
charts and books required for navigation in these 
waters, and a list of all W/T and R/T call signs in 
use by the German Navy. 

The German Admiral SKAGGERAK will des- 
patch a duplicate party to that specified above, with 
similar information, by air in unescorted aircraft 
painted white to DREM Airfield 56°02' NORTH 
02°48' WEST. 

8. The German Naval Officers who will be des- 
patched to DOVER and ROSYTH by sea will pro- 
ceed to positions in latitude 51° 19' NORTH longi- 
tude 1°43' EAST and latitude 56°47' NORTH longi- 
tude 1°13' WEST respectively, where they will be 
met by British warships and escorted to their destina- 
tion. The ships or craft in which they travel are to 
fly a large white flag at the masthead by day and are 
to illuminate these white flags by night. These ships 
are to broadcast their positions hourly by W/T on 
500 ks. (600 Metres) whilst on passage. 

Information required within fourteen days 

9. The German High Command will furnish the 
following information to the Allied Naval Com- 
mander, Expeditionary Force, at by 

within fourteen days of cessation of 
hostilities. 

a. Locations of all warships, auxiliaries and armed 



234 

costal craft operating under the orders of the Ger- 
man Naval Command stating particulars of the op- 
erational unit to which they are attached, giving 
approximate totals of all naval personnel embarked 
in each vessel, (including naval flak and merchant 
ship flak). 

b. A statement of the organizatins of all naval 
shore Commands, giving location of all naval estab- 
lishments, including establishments for experiment 
and research, names of all Commanding Officers and 
Principal Staff Officers of the rank of Commander 
and above, and approximate totals of the personnel 
located in each establishment. 

c. A statement of the strength and location of all 
naval land forces including naval infantry, naval flak, 
merchant ship flak and -naval personnel manning 
naval coast artillery and full particulars of all Coastal 
and port defenses giving nature and locations. 

d. Lists of stocks of furnace oil fuel, diesel oil fuel, 
petrol and coal of 500 tons and more at, or in the 
vicinity of, all ports between IJMUIDEN and 
HAMBURG inclusive. 

e. A statement of location of the principal naval 
armament depots with approximate overall stocks 
of each major item held. 

f. The following communications information: 

(1) location and details concerning all V/S, 
W/T (including D/F) and radar stations in use 
by, and under construction for the German 
Navy, these details to include types and capa- 
bilities of all equipment fitted. 

(2) details of the current naval W/T organi- 
zation, lists of W/T R/T call signs in force, and 
allocation of all frequencies for communication 
and radar purposes. 

(3) location and details of all naval communi- 



235 

cations (including Infra-Red) and naval radar 
training and research establishments. 

g. Full details of all German minefields in the 
NORTH SEA, SKAGGERAK, KATTEGAT, 
BELTS and SOUND. 

h. Full details of the German naval minesweeping 
organization including the communications organi- 
zation. 

j. Full details of the communications (including 
Infra-Red) and radar equipment fitted in all German 
minesweepers and sperrbrechers. 

k. Technical details of all types of minesweeping 
gear in use by the German Navy. 

I. Details of all mining and types of mines em- 
ployed and of berthing facilities available for ships 
of 150 feet in length and 16 feet draught at: 

BREMERHAVEN 
WILHELSHAVEN 
SCHIERMONNIKOOG 
DELFZIJL 

10. The German High Command will also fur- 
nish the Allied Naval Commander, Expeditionary 
Force, with two copies of all coding and cyphering 
systems which have been, are being, or were to be 
used by the German Navy with the necessary in- 
structions for their use and the dates between which 
they have been, or were to have been used. 

Part II — Control and Disarmament 

Orders to warships, auxiliaries, merchant ships and 
other craft 

II. The German High Command will forthwith 
direct all German and German-controlled warships, 
auxiliaries, merchant ships and other craft to comply 
with the following instructions: 



236 

a. All warships, auxiliaries, merchant ships and 
other craft in harbour are to remain in harbour pend- 
ing further directions from the Allied Representa- 
tives. 

b. All warships, auxiliaries, merchant ships and 
other craft at sea are to report their positions in 
plain language immediately to the nearest British, 
US or Soviet Coast Wireless Telegraphy station 
on 500 kc/s (600 metres), and are to proceed to 
the nearest German or Allied port or such ports as 
the Allied Representatives may direct, and remain 
there pending further directions from the Allied 
Representatives. At night they are to show lights and 
to display searchlights with beams held vertically. 

c. All warships and merchant ships whether in 
port or at sea will immediately train all weapons fore 
and aft. All torpedo tubes will be unloaded and 
breech blocks will be removed from all guns. 

d. All warships and merchant ships in German or 
German-controlled harbours will immediately land 
and store in safety all ammunition, warheads and 
other explosives. They will land all portable weapons 
but, pending further instructions, warships will re- 
tain on board the fixed armament. Fire control and 
all other equipment will be maintained on board 
intact and fully efficient. 

e. All minesweeping vessels are to carry out the 
measures of disarmament prescribed in c. and d. 
above, (except that they will, however, retain on 
board such portable weapons and explosives as are 
required for minesweeping purposes) and are to be 
prepared immediately for minesweeping service un- 
der the direction of the Allied Representatives. They 
will complete with fuel where necessary. 

f. All German salvage vessels are to carry out the 
measures of disarmament prescribed in c. and d. 



237 

above (except that they will retain on board such 
explosives as are required for salvage purposes.) 
These vessels, together with all salvage equipment 
and personnel, are to be prepared for immediate 
salvage operations under the direction of the Allied 
Representatives, completing with fuel where neces- 
sary for this purpose. 

g. The movement of transport on the inland water- 
ways of GERMANY may continue, subject to orders 
from the Allied Representatives. No vessels moving 
on inland waterways will proceed to neutral waters. 

Submarines 

12. The German High Command will transmit 
by W/T on appropriate frequencies the two mes- 
sages in Annexures 'A' and 'B', which contain in- 
structions to submarines at sea. 

Naval aircraft 

13. The German High Command will forthwith 
direct that: 

a. German naval aircraft are not to leave the 
ground or water or ship pending directions from 
the Allied Representatives; 

b. naval aircraft in the air are to return imme- 
diately to their bases. 

Neutral shipping 

14. The German High Command will forthwith 
direct that all neutral merchants ships in German 
and German-controlled ports are to be detained 
pending further directions from the Allied Repre- 
sentatives. 

Orders relating to sabotage, scuttling, safety meas- 
ures, pilotage and personnel 

15. The German High Command will forth with 
issue categorical directions that: 



238 

a. No ship, vessel or aircraft of any description is 
to be scuttled or any damage done to their hull, ma- 
chinery or equipment. 

b. all harbour works and port facilities of what- 
ever nature, including telecommunications and radar 
stations, are to be preserved and kept free from 
destruction or damage pending further directions 
from the Allied Representatives, and all necessary 
steps taken and all necessary orders issued to pro- 
hibit any act of scuttling, sabotage, or other wilful 
damage. 

c. all boom defenses at all ports and harbours are 
to be opened and kept open at all times; where pos- 
sible, they are to be removed. 

d. all controlled minefields at all ports and har- 
bours are to be disconnected and rendered ineffective. 

e. all demolition charges in all ports and harbour 
works are to be removed or rendered ineffective and 
their presence indicated. 

f. the existing wartime system of navigational 
lighting is to be maintained, except that all dimmed 
lights are to be shown at full brilliancy, and lights 
only shown by special arrangements are to be ex- 
hibited continuously. 

In particular: 

( 1 ) HELIGOLAND Light is to be burnt at 
full brilliancy. 

(2) The buoyage of the coastal convoy route 
from the HOOK OF HOLLAND to HAM- 
BURG is to be commenced, mid-channel buoys 
being laid six miles apart. 

(3) Two ships are to be anchored as mark 
vessels in the following positions : 

54°20' N, 5°00'E. 
54°20' N, 6°30'E. 



239 

These ships are to fly a large black flag at the mast- 
head by day and by night are to flash a searchlight 
vertically every 30 seconds. 

g. All pilotage services are to continue to operate 
and all pilots are to be held at their normal stations 
ready for service and equipped with charts. 

h. German Naval and other personnel concerned 
in the operation of ports and administrative services 
in ports are to remain at their stations and to con- 
tinue to carry out their normal duties. 

Personnel 

16. The German High Command will forthwith 
direct that except as may be required for the purpose 
of giving effect to the above special orders : 

a. all personnel in German warships, auxiliaries, 
merchant ships and other craft, are to remain on 
board their ships pending further direction from the 
Allied Representatives. 

b. all Naval personnel ashore are to remain in their 
establishments. 

17. The German High Command will be responsi- 
ble for the immediate and total disarmament of all 
naval personnel on shore. The orders issued to the 
German High Command in respect of the disarma- 
ment and war material of land forces will apply 
also to naval personnel on shore. 

Signed H. M. BURROUGH, 
For the Supreme Commander, AEF. 

Dated 0241 7th May 1945 
Rheims, France 

Annexure 'A' 



240 

SURRENDER OF GERMAN 'U' 
BOAT FLEET 

To all 'TJ' Boats at sea : 

Carry out the following instructions forthwith 
which have been given by the Allied Representa- 
tives. 

(A) Surface immediately and remain surfaced. 

(B) Report immediately in P/L your position in 
latitude and longitude and number of your 'U' 
Boat to nearest British, US, Canadian or Soviet 
coast W/T station on 500 kc/s (600 metres) 
and to call sign GZZ 10 on one of the following 
high frequencies: 16845- 12685 or 5970 kc/s. 

(C) Fly a large black or blue flag by day. 

(D) Burn navigation lights by night. 

(E) Jettison all ammunition, remove breach-blocks 
from guns and render torpedoes safe by remov- 
ing pistols. All mines are to be rendered safe. 

(F) Make all signals in P/L. 

(G) Follow T strictly the instructions for proceeding 
to Allied ports from your present area given in 
immediately following message. 

(H) Observe strictly the orders of Allied Repre- 
sentatives to refrain from scuttling or in any 
way damaging your 'U' Boat. 
2. These instructions will be repeated at two-hour 
intervals until further notice. 

Annexure 'B' 

To all 'U' Boats at sea. Observe strictly the in- 
structions already given to remain fully surfaced. 
Report your position course and speed every 8 hours. 
Obey any instruction that may be given you by any 
Allied authority. 

The following are the areas and routes for 'U' 
Boats surrendering: 



241 

(1) Area 'A'. 

a. Bound on West by meridian 026 degs West 
and South by parallel 043 degs North in Barents 
Sea by meridian 020 degs East in Baltic Approaches 
by line joining The Naze and Hantsholm but ex- 
cludes Irish Sea between 051 degs thirty mins and 
055 degs 00 mins North and English Channel be- 
tween line of Lands End Scilly Islands Ushant and 
line of Dover-Calais. 

b. Join one of following routes at nearest point 
and proceed along it to Loch Eriboll (058 degs 33 
minutes North 004 degs 37 mins West). 

Blue route: All positions North and West unless 

otherwise indicated 

The functions of the executive committee and the 
staffs will be to advise the Allied Council and carry 
out its decisions. 

As soon as departments of a central Austrian ad- 
ministration are in a position to operate satisfactorily, 
they will be directed to assume their respective func- 
tions as regards Austria as a whole, and will fulfill 
them under the control of the Allied Commission. 

The administration of the City of Vienna will be 
directed by an inter-Allied governing authority, 
which will operate under the general direction of the 
Allied Council and will consist of four commandants. 
They will be assisted by a technical staff which will 
supervise and control the activities of the local or- 
gans. 

Liaison with other United Nations' Governments 
chiefly interested will be insured by the appointment 
by such Governments of military missions which 
may include civilian members to the Allied Council. 

United Nations organizations will, if admitted by 
the Allied Council to operate in Austria, be subor- 
dinate to the Allied Commission and answerable to it. 



242 

Summary of the Agreement Between the Gov- 
ernments of the United Kingdom, the United 
States of America and the Union of Soviet 
Socialist Republics and the Provisional Gov- 
ernment of the French Republic on Zones 
of Occupation in Austria. 

1— Austria within its 1937 frontiers will, for pur- 
poses of occupation be divided into four zones, one 
to be alloted to each power as follows : 

The northeastern (Soviet) zone will consist of the 
Province of Lower Austria, with the exception of the 
City of Vienna, that part of the Province of Upper 
Austria situated on the left bank of the Danube and 
the Province of Burgenland. 

The northwestern (United States) zone will con- 
sist of the Province of Salzburg and that part of the 
Province of Upper Austria situated on the right 
bank of the Danube. 

The western (French) zone will consist of the 
Provinces of Tyrol and Vorarlberg. 

The southern (United Kingdom) zone will con- 
sist of the Province of Carinthia, including Ost- 
Tyrol, and the Province of Styria, except the area 
of the Burgenland. 

2 — The City of Vienna within its 1937 boundaries 
will be jointly occupied by the armed forces of the 
four powers and its administration will be directed 
by an inter- Allied governing authority consisting of 
four commandants appointed by their respective com- 
mander in chief. 

The district of the Innere Stadt will be occupied 
by armed forces of the four powers. 

The districts of Leopoldstadt, Brigittenau, Florids- 
dorf, Wieden and Favoriten will be occupied by 
armed forces of the Soviet Union; 



243 

The districts of Neubau, Josfstadt, Hernals, Alser- 
grund, Wahring and Dobling will be occupied by 
armed forces of the United States of America; 

The districts of Mariahilf, Penzing, Funfhaus 
(including the district of Rudolfsheim) and Otta- 
kring will be occupied by armed forces of the French 
Republic; 

The districts of Heitzing, Margareten, Meidling, 
Landstrasse and Simmering will be occupied by 
armed forces of the United Kingdom. 

XIII. SOVIET WAR DFXLARATION ON JAPAN 

(New York Times, Aug. 9, 1945) 

LONDON , Aug. 8 — Foreign Commissar Molo- 
toff 's announcement of the declaration of war, as 
broadcast by Moscow, follows'. 

On Aug. 8, People's Commissar for Foreign Af- 
fairs of the U.S.S.R. MolotofT received the Japanese 
Ambassador, Mr. Sato, and gave him, on behalf of 
the Soviet Government, the following for transmis- 
sion to the Japanese Government: 

"After the defeat and capitulation of Hitlerite Germany, Japan 
became the only great power that still stood for the continuation 
of the war. 

"The demand of the three powers, the United States, Great 
Britain and China, on July 26 for the unconditional surrender of 
the Japanese armed forces was rejected by Japan, and thus the 
proposal of the Japanese Government to the Soviet Union on 
mediation in the war in the Far East loses all basis. 

"Taking into consideration the refusal of Japan to capitulate, 
the Allies submitted to the Soviet Government a proposal to join 
the war against Japanese aggression and thus shorten the dura- 
tion of the war, reduce the number of victims and facilitate the 
speedy restoration of universal peace. 

"Loyal to its Allied duty, the Soviet Government has accepted 
the proposal of the Allies and has joined in the declaration of the 
Allied Powers of July 26. 

"The Soviet Government considers that this policy is the only 



244 

means able to bring peace nearer, free the people from further 
sacrifice and suffering and give the Japanese people the possibility 
of avoiding the dangers and destruction suffered by Germany 
after her refusal to capitulate unconditionally. 

"In view of the above, the Soviet Government declares that 
from tomorrow, that is from Aug. 9, the Soviet Government will 
consider itself to be at war with Japan." 

049 degs 00 mins 009 degs 00 mins 053 degs 00 mins 

012 degs 00 mins 058 degs 00 mins 011 degs 00 mins 

059 degs 00 mins 005 degs 30 mins thence to Loch 

Eriboll. 
Red route : 053 degs 45 mins North 003 degs 00 mins 

East 

059 degs 45 mins 001 degs 00 mins 059 degs 45 mins 

003 degs 00 mins thence to Loch Eriboll. 

c. Arrive at Loch Eriboll between sunrise and 3 
hours before sunset. 

(2) Area'B' 

a. The Irish Sea between parallel of 051 degs 30 
mins and 055 degs 00 mins North. 

b. Proceed Beaumaris (053 degs 19 mins North 
003 degs 58 mins West) to arrive between sunrise 
and 3 hours before sunset. 

(3) Area 'C 

a. The English Channel between line of Lands 
End — Scilly Isles — Ushant and line of Dover — 
Calais. 

b. 'LP Boats in area 'C are to join one of fol- 
lowing routes at nearest point: Green route: po- 
sition 'A' 049 degs 10 mins North 005 degs 40 mins 
West position 'B' 050 degs 00 mins North 003 degs 
00 mins West thence escorted to Weymouth. Orange 
route: position 'X' 050 degs 30 mins North 000 
degs 50 mins East position 'Y' 050 degs 10 mins 
North 001 degs 50 mins West thence escorted to 
Weymouth. 

c. Arrive at either 'B' or 'Y' between sunrise and 
3 hours before sunset. 



245 

(4) Area 'D' 

a. Bound on West by lines joining The Naze and 
Hantsholm and on East by lines joing Lubeek and 
Trelleborg. 

b. Proceed to Kiel. 

(5) Area 'E' 

a. Mediterranean Approaches bound on North by 
043 degs North and South by 026 degs North and 
on West by 026 degs West. 

b. Proceed to a rendezvous in position 'A' 036 
degs 00 mins North 011 degs 00 mins West and 
await escort reporting expected time of arrival in 
plain language to Admiral Gibraltar on 500 kc/s. 

c. Arrive in position 'A' between sunrise and noon 
G.M.T. 

(6) Area 'F' 

a. The North and South Atlantic West of 026 
degs West. 

b. Proceed to nearest of one of following points 
arriving between sunrise and 3 hours before sun- 
set: W 043 degs 30 mins North 070 degs 00 mins 
West approach from a point 15 miles due East X 
038 degs 20 mins North 074 degs 25 mins West ap- 
proach from a point 15 miles due East Y 047 degs 
18 mins North 052 degs 30 mins West approach 
from point 047 degs 18 mins North 051 degs 30 
mins West on a course 270 degs Z 043 degs 31 mins 
North 065 degs 05 mins West approach from point 
042 degs 59 mins North 064 degs 28 mins West on 
a course 320 degs. 



246 

XIV. STATEMENT ON AUSTRIA 

(New York Times, Aug. 9, 1945) 

Summary of the Agreement Between the Gov- 
ernments of the United Kingdom, the United 
States of America and the Union of Soviet 
Socialist Republics and the Provisional Gov- 
ernment of the French Republic on Control 
Machinery in Austria. 

The Allied control machinery in Austria will con- 
sist of an Allied Council, an executive committee and 
staffs appointed by the four governments concerned, 
the whole organization being known as the Allied 
Commission for Austria. 

The primary tasks of the Allied Commission for 
Austria will be: 

To achieve the separation of Austria from Ger- 
many; 

To secure the establishment, as soon as possible, 
of a central Austrian administrative machine; 

To prepare the way for the establishment of a 
freely elected Austrian government; 

Meanwhile, to provide for the administration of 
Austria to be carried on satisfactorily. 

The Allied Council will consist of four military 
commissioners who will jointly exercise supreme au- 
thority in Austria in respect of matters affecting Aus- 
tria as a whole. Subject to this, each military com- 
missioner in his capacity as commander in chief of 
the forces of occupation furnished by his Govern- 
ment will exercise full authority in the zone occu- 
pied by those forces. 

The Allied Council, whose decision should be 
unanimous, will initiate plans and reach decisions on 
the chief questions affecting Austria as a whole and 
will insure appropriate uniformity of action in zones 
of occupation. 



247 

XV. OFFER OF SURRENDER FROM 
JAPANESE GOVERNMENT 

(Department of State Bulletin, Vol. XIII, No. 320, Aug. 12, 1945) 

August 10, 1945 
Sir: 

I have the honor to inform you that the Japa- 
nese Minister to Switzerland, upon instructions re- 
ceived from his Government, has requested the Swiss 
Political Department to advise the Government of 
the United States of America of the following: 

"In obedience to the gracious command of His Majesty the 
Emperor who, ever anxious to enhance the cause of world peace, 
desires earnestly to bring about a speedy termination of hostilities 
with a view to saving mankind from the calamities to be imposed 
upon them by further continuation of the war, the Japanese Gov- 
ernment several weeks ago asked the Soviet Government, with 
which neutral relations then prevailed, to render good offices in 
restoring peace vis a vis the enemy powers. Unfortunately, these 
efforts in the interest of peace having failed, the Japanese Govern- 
ment in conformity with the august wish of His Majesty to 
restore the general peace and desiring to put an end to the untold 
sufferings entailed by war as quickly as possible, have decided upon 
the following. 

"The Japanese Government are ready to accept the terms 
enumerated in the joint declaration which was issued at Potsdam 
on July 26th, 1945, by the heads of the Governments of the United 
States, Great Britain, and China, and later subscribed by the 
Soviet Government, with the understanding that the said declara- 
tion does not comprise any demand which prejudices the preroga- 
tives of His Majesty as a Sovereign Ruler. 

"The Japanese Government sincerely hope that this under- 
standing is warranted and desire keenly that an explicit indication 
to that effect will be speedily forthcoming." 

In transmitting the above message the Japanese 
Minister added that his Government begs the Gov- 
ernment of the United States to forward its answer 
through the intermediary of Switzerland. Similar 
requests are being transmitted to the Governments 
of Great Britain and the Union of Soviet Socialist 



248 

Republics through the intermediary of Sweden, as 
well as to the Government of China through the 
intermediary of Switzerland. The Chinese Minister 
at Berne has already been informed of the fore- 
going through the channel of the Swiss Political 
Department. 

Please be assured that I am at your disposal at 
any time to accept for and forward to my Gov- 
ernment the reply of the Government of the United 
States. 

Accept [etc.] 

Grassli 
Charge d' Affaires ad interim 
of Switzerland. 
The Honorable 

James F. Byrnes 

Secretary of State. 

August 11, 1945 
Sir: 

I have the honor to acknowledge receipt of your 
note of August 10, and in reply to inform you that 
the President of the United States has directed me 
to send to you for transmission by your Govern- 
ment to the Japanese Government the following 
message on behalf of the Governments of the United 
States, the United Kingdom, the Union of Soviet 
Socialist Republics, and China: 

"With regard to the Japanese Government's message accepting 
the terms of the Potsdam proclamation but containing the state- 
ment, 'with the understanding that the said declaration does not 
comprise any demand which prejudices the prerogatives of His 
Majesty as a sovereign ruler,' our position is as follows: 

"From the moment of surrender the authority of the Emperor 
and the Japanese Government to rule the state shall be subject 
to the Supreme Commander of the Allied powers who will take 
such steps as he deems proper to effectuate the surrender terms. 

"The Emperor will be required to authorize and ensure the 



249 

signature by the Government of Japan and the Japanese Imperial 
General Headquarters of the surrender terms necessary to carry 
out the provisions of the Potsdam Declaration, and shall issue 
his commands to all the Japanese military, naval and air authori- 
ties and to all the forces under their control wherever located to 
cease active operations and to surrender their arms, and to issue 
such other orders as the Supreme Commander may require to 
give effect to the surrender terms. 

"Immediately upon the surrender the Japanese Government 
shall transport prisoners of war and civilian internees to places of 
safety, as directed, where they can quickly be placed aboard 
Allied transports. 

"The ultimate form of government of Japan shall, in accordance 
with the Potsdam Declaration, be established by the freely expressed 
will of the Japanese people. 

"The armed forces of the Allied Powers will remain in Japan 
until the purposes set forth in the Potsdam Declaration are 
achieved." 

Accept [etc.]. James F. Byrnes, 

Secretary of State. 
Mr. Max Grassli 

Charge d' Affaires ad interim of 
Switzerland. 

XVI. AGREEMENT FOR THE ESTABLISHMENT OF AN 
INTERNATIONAL MILITARY TRIBUNAL 

(Department of State Bulletin, Vol. XIII, No. 320, Aug. 12, 1945) 

AGREEMENT BY THE GOVERNMENT OF THE UNITED 
STATES OF AMERICA, THE PROVISIONAL GOVERNMENT 
OF THE FRENCH REPUBLIC, THE GOVERNMENT OF 
THE UNITED KINGDOM OF GREAT BRITAIN AND 
NORTHERN IRELAND AND THE GOVERNMENT OF 
THE UNION OF SOVIET SOCIALIST REPUBLICS FOR THE 
PROSECUTION AND PUNISHMENT OF THE MAJOR 
WAR CRIMINALS OF THE EUROPEAN AXIS. 

Whereas the United Nations have from time to 
time made declarations of their intention that war 
criminals shall be brought to justice; 

And whereas the Moscow Declaration of the 30th 



250 

October 1943 on German atrocities in occupied Eu- 
rope stated that those German officers and men and 
members of the Nazi party who have been responsi- 
ble for or have taken a consenting part in atrocities 
and crimes will be sent back to the countries in which 
their abominable deeds were done in order that they 
maybe judged and punished according to the laws 
of these liberated countries and of the free govern- 
ments that will be created therein ; 

And whereas this declaration was stated to be 
without prejudice to the case of major criminals 
whose offenses have no particular geographic loca- 
tion and who will be punished by the joint decision 
of the Governments of the Allies; 

Now, therefore, the Government of the United 
States of America, the Provisional Government of 
the French Republic, the Government of the United 
Kingdom of Great Britain and Northern Ireland, 
and the Government of the Union of Soviet Socialist 
Republics (hereinafter called "the signatories") act- 
ing in the interests of all the United Nations and by 
their representatives duly authorized thereto have 
concluded this agreement. 

Article 1. There shall be established, after con- 
sultation with the Control Council for Germany, 
and International Military Tribunal for the trial 
of war criminals whose offenses have no particu- 
lar geographical location, whether they be accused 
individually or in their capacity as members of or- 
ganizations or groups or in both capacities. 

Article Z. The constitution, jurisdiction, and func- 
tions of the International Military Tribunal shall be 
those set out in the charter annexed to this agreement, 
which Charter shall form an integral part of this 
agreement. 

Article 3. Each of the signatories shall take the 



251 

necessary steps to make available for the investiga- 
tion of the charges and trial the major war criminals 
detained by them who are to be tried by the Inter- 
national Military Tribunal. The signatories shall 
also use their best endeavors to make available for 
investigation of the charges against, and the trial 
before the International Military Tribunal, such of 
the major war criminals as are not in the territories 
of any of the signatories. 

Article 4. Nothing in this agreement shall prej- 
udice the provisions established by the Moscow Dec- 
laration concerning the return of war criminals to 
the countries where they committed their crimes. 

Article 5. Any Government of the United Nations 
may adhere to this agreement by notice given through 
the diplomatic channel to the Government of the 
United Kingdom, who shall inform the other signa- 
tory and adhering Governments of each such ad- 
herence. 

Article 6. Nothing in this agreement shall prej- 
udice the jurisdiction or the powers of any national 
or occupation court established or to be established 
in any Allied territory or in Germany for the trial 
of war criminals. 

Article 7. This agreement shall come into force 
on the day of signature and shall remain in force 
for the period of one year and shall continue there- 
after, subject to the right of any signatory to give, 
through the diplomatic channel, one month's notice 
of intention to terminate it. Such termination shall 
not prejudice any proceedings already taken or any 
findings already made in pursuance of this agreement. 

In witness whereof the undersigned have signed 
the present agreement. 

Done in quadruplicate in London this eighth day of 



252 

August, 1945, each in English, French, and Russian 
and each text to have equal authenticity. 

For the Government of the United States of 
America 
Robert H. Jackson 

For the Provisional Government of the French Re- 
public 
Robert Folco 

For the Government of the United Kingdom of 
Great Britain and Northern Ireland 
JOWITT 

For the Government of the Union of Soviet Socialist 
Republics 
I. T. NlKITCHENKO 

A. N. Trainin 

CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL 

I. Constitution of the International 
Military Tribunal 

Article 1. In pursuance of the agreement signed 
on the eighth day of August, 1945, by the Govern- 
ment of the United States of America, the Provi- 
sional Government of the French Republic, the Gov- 
ernment of the United Kingdom of Great Britain 
and Northern Ireland, and the Government of the 
Union of Soviet Socialist Republics, there shall be 
established an International Military Tribunal 
(hereinafter called a the Tribunal") for the just and 
prompt trial and punishment of the major war 
criminals of the European Axis. 

Article 2. The Tribunal shall consist of four mem- 
bers, each with an alternate. One member and one 
alternate shall be appointed by each of the signa- 
tories. The alternates shall, so far as they are able, 



253 

be present at all sessions of the Tribunal. In case of 
illness of any member of the Tribunal or his inca- 
pacity for some other reason to fulfill his functions, his 
alternate shall take his place. 

Article 3. Neither the Tribunal, its members, nor 
their alternates can be challenged by the prosecu- 
tion or by the defendants or their counsel. Each 
signatory may replace its member of the Tribunal 
or his alternate for reasons of health or for other 
good reasons, except that no replacement may take 
place during a trial other than by an alternate. 

Article 4. 

(a) The presence of all four members of the 
Tribunal, or the alternate for any absent member, 
shall be necessary to constitute the quorum. 

(b) The members of the Tribunal shall, before 
any trial begins, agree among themselves upon the 
selection from their number of a President, and the 
President shall hold office during that trial or as 
may otherwise be agreed by a vote of not less than 
three members. The principle of rotation of presi- 
dency for successive trials is agreed. If, however, 
a session of the Tribunal takes place on the terri- 
tory of one of the four signatories, the representa- 
tive of that signatory on the Tribunal shall preside. 

(c) Save as aforesaid the Tribunal shall take 
decisions by a majority vote, and in case the votes 
are evenly divided the vote of the President shall 
be decisive, provided always that convictions and 
sentences shall only be imposed by affirmative votes 
of at least three members of the Tribunal. 

Article 5. In case of need and depending on the 
number of the matters to be tried, other tribunals 
may be set up, and the establishment, functions and 
procedure of each tribunal shall be identical and 
shall be governed by this Charter. 



254 

II. Jurisdiction and General Principles 

Article 6. The Tribunal established by the agree- 
ment referred to in article 1 hereof for the trial and 
punishment of the major war criminals of the Euro- 
pean Axis counties shall have the power to try and 
punish persons who, acting in the interests of the 
European Axis countries, whether as individuals or 
as members of organizations committed any of the 
following crimes. 

The following acts, or any of them, are crimes 
coming within the jurisdiction of the Tribunal for 
which there shall be individual responsibility: 

(a) Crimes against peace. Namely, planning, 
preparation, initiation, or waging of a war of aggres- 
sion or a war in violation of international treaties, 
agreements, or assurances, or participation in a com- 
mon plan or conspiracy for the accomplishment of 
any of the foregoing. 

(b) War Crimes. Namely, violations of the laws 
or customs of war. Such violations shall include, but 
not be limited to, murder, ill treatment, or deporta- 
tion to slave labor or for any other purpose of civilian 
population of or in occupied territory, murder or ill 
treatment of prisoners of war or persons on the seas, 
killing of hostages, plunder of public or private 
property, wanton destruction of cities, towns, or 
villages, or devastation not justified by military neces- 
sity. 

(c) Crimes against humanity. Namely, murder, 
extermination, enslavement, deportation and other 
inhumane acts committed against any civilian popu- 
lation before or during the war or persecutions on 
political, racial, or religious grounds in execution of 
or in connection with any crime within the jurisdic- 
tion of the Tribunal, whether or not in violation of 
the domestic law of the country where perpetrated. 



255 

Leaders, organizers, instigators, and accomplices 
participating in the formulation or execution of a 
common plan or conspiracy to commit any of the 
foregoing crimes are responsible for all acts per- 
formed by any persons in execution of such plan. 

Article 7. The official position of defendants, 
whether as heads of state or responsible officials in 
government departments, shall not be considered as 
freeing them from responsibility or mitigating pun- 
ishment. 

Article 8. The fact that the defendant acted pur- 
suant to order of his government or of a superior 
shall not free him from responsibility but may be 
considered in mitigation of punishment if the Tri- 
bunal determines that justice so requires. 

Article 9. At the trial of any individual member 
of any group or organization the Tribunal may de- 
clare (in connection with any act of which the in- 
dividual may be convicted) that the group or organi- 
zation of which the individual was a member was a 
criminal organization. 

After receipt of the indictment the Tribunal shall 
give such notice as it thinks fit that the prosecution 
intends to ask the Tribunal to make such declaration 
and any member of the organization will be entitled 
to apply to the Tribunal for leave to be heard by the 
Tribunal upon the question of the criminal character 
of the organization. The Tribunal shall have powder 
to allow or reject the application. If the application 
is allowed, the Tribunal may direct in what manner 
the applicants shall be represented and heard. 

Article 10. In cases where a group or organization 
is declared criminal by the Tribunal, the competent 
national authority of any signatory shall have the 
right to bring individuals to trial for membership 



256 

therein before national, military, or occupation 
courts. In any such case the criminal nature of the 
group or organization is considered proved and shall 
not be questioned. 

Article 11. Any person convicted by the Tribunal 
may be charged before a national, military, or occu- 
pation court, referred to in article 10 of this Charter, 
with a crime other than of membership in a criminal 
goup or organization, and such court may after con- 
victing him impose upon him punishment indepen- 
dent of and additional to the punishment imposed by 
the Tribunal for participation in the criminal activi- 
ties of such group or organization. 

Article 12. The Tribunal shall have the right to 
take proceedings against a person charged with 
crimes set out in article 6 of this Charter in his 
absence if he has not been found or if the Tribunal 
for any reason finds it necessary in the interests of 
justice to conduct the hearing in his absence. 

Article 1 3. The Tribunal shall draw up rules for 
its procedure. These rules shall not be inconsistent 
with the provisions of this Charter. 

III. Committee for the Investigation and Pros- 
ecution of Major War Criminals 

Article 14. Each signatory shall appoint a chief 
prosecutor for the investigation of the charges against 
and the prosecution of major war criminals. 

The chief prosecutors shall act as a committee 
for the following purposes: 

(a) To agree upon a plan of the individual work 
of each of the chief prosecutors and his staff. 

(b) To settle the final designation of major war 
criminals to be tried by the Tribunal. 

(c) To approve the indictment and the docu- 
ments to be submitted therewith. 



257 

(d) To lodge the indictment and the accompany- 
ing documents with the Tribunal. 

(e) To draw up and recommend to the Tribunal 
for its approval draft rules of procedure contem- 
plated by article 13 of this Charter. The Tribunal 
shall have power to accept with or without amend- 
ments or to reject the rules so recommended. 

The committee shall act in all the above matters 
by a majority vote and shall appoint a chairman 
as may be convenient and in accordance with the 
principle of rotation, provided that, if there is an 
equal division of vote concerning the designation 
of a defendant to be tried by the Tribunal or the 
crimes with which he shall be charged, that pro- 
posal will be adopted which was made by the party 
which proposed that the particular defendant be 
tried or the particular charges be preferred against 
him. 

Article 15. The chief prosecutors shall individu- 
ally, and acting in collaboration with one another, 
also undertake the following duties : 

(a) investigation, collection, and production be- 
before or at the trial of all necessary evidence. 

(b) The preparation of the indictment for ap- 
proval by the committee in accordance with para- 
graph (c) of article 14 hereof. 

(c) The preliminary examination of all necessary 
witnesses and of the defendants. 

(d) To act as prosecutor at the trial. 

(e) To appoint representatives to carry out such 
duties as may be assigned to them. 

(f) To undertake such other matters as may ap- 
pear necessary to them for the purposes of the prepa- 
ration for and conduct of the trial. 

It is understood that no witness or defendant 



258 

detained by any signatory shall be taken out of the 
possession of that signatory without its assent. 

IV. Fair Trial for Defendants 

Article 16. In order to insure fair trial for the 
defendants the following procedure shall be fol- 
lowed : 

(a) The indictment shall include full particulars 
specifying in detail the charges against the defendants. 
A copy of the indictment and of all the documents 
lodged with the indictment, translated into a lan- 
guage which he understands, shall be furnished to 
the defendant at a reasonable time before the trial. 

(b) During any preliminary examination or trial 
of a defendant he shall have the right to give any 
explanation relevant to the charges made against him. 

(c) A preliminary examination of a defendant 
and his trial shall be conducted in or translated into 
a language which the defendant understands. 

(d) A defendant shall have the right to conduct 
his own defense before the Tribunal or to have the 
assistance of counsel. 

(e) A defendant shall have the right through him- 
self or through his counsel to present evidence at the 
trial in support of his defense and to cross-examine 
any witness called by the prosecution. 

V. Powers of the Tribunal and Conduct of 
the Trial 

Article 17. The Tribunal shall have the power: 

(a) To summon witnesses to the trial and to 
require their attendance and testimony and to put 
questions to them. 

(b) To interrogate any defendant. 

(c) To require the production of documents and 
other evidentiary material. 

(d) To administer oaths to witnesses. 



259 

(e) To appoint officers for the carrying out of 
any task designated by the Tribunal, including the 
power to have evidence taken on commission. 

Article 18. The Tribunal shall : 

(a) Confine the trial strictly to an expeditious 
hearing of the issues raised by the charges. 

(b) Take strict measures to prevent any action 
which will cause unreasonable delay and rule out 
irrelevant issues and statements of any kind what- 
soever. 

(c) Deal summarily with any contumacy, im- 
posing appropriate punishment, including exclusion 
of any defendant or his counsel from some or all 
further proceedings but without prejudice to the de- 
termination of the charges. 

Article 19. The Tribunal shall not be bound by 
technical rules of evidence. It shall adopt and apply 
to the greatest possible extent expeditious and non- 
technical procedure and shall admit any evidence 
which it deems to have probative value. 

Article 20. The Tribunal may require to be in- 
formed of the nature of any evidence before it is 
offered so that it may rule upon the relevance thereof. 

Article 21. The Tribunal shall not require proof 
of facts of common knowledge but shall take judicial 
notice thereof. It shall also take judicial notice of 
official governmental documents and reports of the 
United Nations, including the acts and documents of 
the committees set up in the various Allied countries 
for the investigation of war crimes, and the records 
and findings of military or other tribunals of any of 
the United Nations. 

Article 22. The permanent seat of the Tribunal 
shall be Berlin. The first meetings of the members of 
the Tribunal and of the Chief Prosecutor shall be 
held at Berlin in a place to be designated by the 



260 

Control Council for Germany. The first trial shall 
be held at Nuremberg and any subsequent trials 
shall be held at such places as the Tribunal may 
decide. 

Article 23. One or more of the chief prosecutors 
may take part in the prosecution at each trial. The 
function of any chief prosecutor may be discharged 
by him personally or by any person or persons au- 
thorized by him. 

The function of counsel for a defendant may be 
discharged at the defendant's request by any counsel 
professionally qualified to conduct cases before the 
courts of his own country or by any other person who 
may be specially authorized thereto by the Tribunal. 

Article 24. The proceedings at the trial shall take 
the following course : 

(a) The indictment shall be read in court. 

(b) The Tribunal shall ask each defendant 
whether he pleads "guilty" of "not guilty." 

(c) The prosecution shall make an opening state- 
ment. 

(d) The Tribunal shall ask the prosecution and 
the defense what evidence (if any) they wish to sub- 
mit to the Tribunal, and the Tribunal shall rule upon 
the admissibility of any such evidence. 

(e) The witnesses for the prosecution shall be 
examined and after that the witnesses for the defense. 
Thereafter such rebutting evidence as may be held 
by the Tribunal to be admissible shall be called by 
either the prosecution or the defense. 

(f) The Tribunal may put any question to any 
witness and to any defendant at any time. 

(g) The prosecution and the defense shall inter- 
rogate and may cross-examine any witnesses and any 
defendant who gives testimony. 

(h) The defense shall address the court. 



261 

(i) The prosecution shall address the court. 

(j) Each defendant may make a statement to the 
Tribunal. 

(k) The Tribunal shall deliver judgment and 
pronounce sentence. 

Article 25. All official documents shall be pro- 
duced, and all court proceedings conducted, in Eng- 
lish, French, and Russian and in the language of the 
defendant. So much of the record and of the pro- 
ceedings may also be translated into the language of 
any country in which the Tribunal is sitting as the 
Tribunal considers desirable in the interests of justice 
and public opinion. 

VI. Judgment and Sentence 

Article 26. The judgment of the Tribunal as to the 
guilt or the innocence of any defendant shall give 
the reasons on which it is based and shall be final 
and not subject to review. 

Article 27. The Tribunal shall have the right to 
impose upon a defendant, on conviction, death, or 
such other punishment as shall be determined by it 
to be just. 

Article 28. In addition to any punishment imposed 
by it the Tribunal shall have the right to deprive the 
convicted person of any stolen property and order 
its delivery to the Control Council for Germany. 

Article 29. In case of guilt, sentences shall be car- 
ried out in accordance with the orders of the Control 
Council for Germany, which may at any time reduce 
or otherwise alter the sentences but may not increase 
the severity thereof. If the Control Council for Ger- 
many, after any defendant has been convicted and 
sentenced, discovers fresh evidence which in its 
opinion would found a fresh charge against him, 
the Council shall report accordingly to the Com- 
mittee established under article 14 hereof for such 



262 



action as they may consider proper, having regard 
to the interests of justice. 

VII. Expenses 

Article 30. The expenses of the Tribunal and of 
the trials shall be charged by the signatories against 
the funds allotted for maintenance of the Control 
Council for Germany. 

XVII. JAPANESE ACCEPTANCE OF 

POTSDAM DECLARATION 

STATEMENT BY THE PRESIDENT 

(The Department of State Bulletin, Vol. No. 321, Aug. 19, 1945) 

I have received this afternoon a message from 
the Japanese Government in reply to the message 
forwarded to that Government by the Secretary of 
State on August 11. I deem this replay a full accep- 
tance of the Potsdam Declaration which specifies the 
unconditional surrender of Japan. In the reply there 
is no qualification. 

Arrangements are now being made for the formal 
signing of surrender terms at the earliest possible 
moment. 

General Douglas MacArthur has been appointed 
the Supreme Allied Commander to receive the Japa- 
nese surrender. Great Britain, Russia, and China 
will be represented by high-ranking officers. 

Meanwhile, the Allied armed forces have been 
ordered to suspend offensive action. 

The proclamation of V-J Day must wait upon 
the formal signing of the surrender terms by Japan. 

Following is the Japanese Government's message 
accepting our terms: 

"Communication of the Japanese Government of August 14, 
1945, addressed to the Governments of the United States, Great 
Britain, the Soviet Union, and China: 

"With reference to the Japanese Government's note of August 



263 

10 re^ardin^ their acceptance of the provisions of the Potsdam 
declaration and the reply of the Governments of the United States, 
Great Britain, the Soviet Union, and China sent by American 
Secretary of State Byrnes under the date of August 11, the 
Japanese Government have the honor to communicate to the 
Government of the four powers as follows: 

"1. His Majesty the Emperor has issued an Imperiad rescript 
regarding Japan's acceptance of the provisions of the Potsdam 
declaration. 

"2. His Majesty the Emperor is prepared to authorize and 
ensure the signature by his Government and the Imperial General 
Headquarters of the necessary terms for carrying out the provisions 
of the Potsdam declaration. His Majesty is also prepared to 
issue his commands to all the military, naval, and air authorities 
of Japan and all the forces under their control wherever located 
to cease active operations, to surrender arms and to issue such 
other orders as may be required by the Supreme Commander of 
the Allied Forces for the execution of the above-mentioned terms." 

EXCHANGE OF NOTES BETWEEN SWISS 

charge and secretary of state 

August 14, 1945. 
Sir: 

I have the honor to refer to your note of August 
11, in which you requested me to transmit to my 
Government the reply of the Governments of the 
United States, the United Kingdom, the Union of 
Soviet Socialist Republics, and China to the message 
from the Japanese Government which was communi- 
cated in my note of August 10. 

At 20.10 today (Swiss Time) the Japanese Min- 
ister to Switzerland conveyed the following writ- 
ten statement to the Swiss Government for trans- 
mission to the four Allied governments : 
Accept [etc.] 

Grassli 
Charge a" Affaires ad interim 
of Switzerland 



264 

August 14, 1945. 
Sir: 

With reference to your communication of today's 
date, transmitting the reply of the Japanese Govern- 
ment to the communication which I sent through you 
to the Japanese Government on August 1 1, on behalf 
of the Governments of the United States, China, the 
United Kingdom, and the Union of Soviet Socialist 
Republics, which I regard as full acceptance of the 
Potsdam Declaration and of my statement of August 
11, 1945, I have the honor to inform you that the 
President of the United States has directed that the 
following message be sent to you for transmission 
to the Japanese Government: 

"You are to proceed as follows: 

"(1) Direct prompt cessation of hostilities by Japanese forces, 
informing the Supreme Commander for the Allied Powers of the 
effective date and hour of such cessation. 

"(2) Send emissaries at once to the Supreme Commander for 
the Allied Powers with information of the disposition of the 
Japanese forces and commanders, and fully empowered to make 
any arrangements directed by the Supreme Commander for the 
Allied Powers to enable him and his accompanying forces to arrive 
at the place designated by him to receive the formal surrender. 

"(3) For the purpose of receiving such surrender and carrying 
it into effect, General of the Army Douglas MacArthur has been 
designated as the Supreme Commander for the Allied Powers, 
and he will notify the Japanese Government of the time, place 
and other details of the formal surrender." 

Accept [etc.] 

James F. Byrnes, 
Secretary of State. 
Max Grassli, Esquire, 

Charge d' Affaires ad interim of Switzerland. 



INDEX 

Page 

Argentina : 

Resolution concerning 119 

Austria : 

Potsdam Declaration 221 

Occupation of 242, 246 

Bulgaria : 

Potsdam Declaration 226 

Chapultepec, Act of 110 

Contraband 1 

Early attitude toward 1 

18th and 19th Centuries 3 

Continuous Voyage 8,42 

20th Century .". 11 

Russo-Japanese War 12 

Japanese Prize Courts 12 

American Attitude 12 

Dept. of State 13 

Russia 20 

Declaraton of London 22, 60 

World War I 22 

Changes in Contraband Lists 24 

Japan 26 

U.S. Naval Instructions 36 

Destination, Conditional Contraband 53 

Destination, Further Refinements 57 

Navicerts 69 

Non-Contraband 74 

Harvard Draft Convention 78 

World War II 87 

Conclusions 99 

Crimea Conference 100 

Defeat of Germany 102 

Occupation and Control of 103 

Reparations by 104 

United Nations Conference 104 

Declaration on Europe 105 

Poland 106 

Report on Freed Prisoners 110 

Dept. of State 13,49 

Destination : 

Conditional Contraband 53 

Further Refinements 57 

Europe : 

Declaration on Liberated Europe 105 

265 



266 

Page 

Germany : 44 

Prize Law Code (1939) 90 

Defeat of 102 

Occupation and Control of 103 

Reparations by 104 

Surrender of 124, 200, 228 

Potsdam Declaration : 207 

Great Britain : 91 

Occupation of Austria 242, 246 

Grotius 3 

Hague Conference 15 

Regarding Contraband 14 

Harvard Draft Convention 78 

Hungary : 

Potsdam Declaration 226 

International Military Tribunal 249 

International Court of Justice 170, 176 

Japan: 26 

Soviet Denunciation of Pact 121 

Surrender of 204,247 

Declaration of War by Russia 243 

Acceptance of Potsdam Declaration 262 

Japanese Prize Courts 12 

London, Declaration of 22 

Navicerts 69 

Poland: 106 

Potsdam Declaration 221 

Potsdam Declaration 207 

Japanese Acceptance of 262 

Rumania : 

Potsdam Declaration 226 

Russo-Japanese War 12 

Trusteeship Council 168 

United Nations 104 

Charter of 138 

Union of Socialists Soviet Republics : 

Denunciation of Pact with Japan 121 

Occupation of Austria 242, 246 

Declaration of war on Japan 243 

United States : 

Occupation of Austria 242, 246 

United States Naval Instructions (1917) 36 

World War I 22, 53 

World War II 87 

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